Present: Garviu and Dalton JJ.
MATHER D. PERI TAMBY CHETTY.
31—D. C. (Inty.) Colombo, 4,.813
Summons—Action by tcay of summary procedure—Two defendantsworking in partnership—Personal service—Civil Procedure Code,
S8. 00, Si, 70o.
In an action .by way of summary procedure on a iiquid’ claimservice of summons need not be personal.
Where such an actiou is brought against two defendants, carryingon business in partnership, summons may bo served on one asagent- of the other.-
Lctchimanon a. Ramanalhan Chetty 1 overruled.
PPEAL from an order of the District Judge of Colombo. Thefacts appear from the judgment.
Kulashigham, for appellant.
April 7, 1927. Daltox J.—
The plaintiff, the present appellant, sued the defendants,., underthe procedure laid down in Chapter LITE, of the Civil ProcedureCode, to recover the stun of Rs. 2,821.33 due on promissory notesfrom the two defendants. Summons was issued and served uponthe first defendant for himself, the summons against the seconddefendant being also served upon the first defendant as partner audagent of the second defendant. No application was made on behalfof either defendant for leave to appear and defend the action. When,however, in due course the plaintiff moved that judgment be enteredagainst the defendants, the learned Judge in the Court belowrefused to allow the motion on the ground that there was nolegal service of the summons on the second defendant. It does notappear that judgment was entered against the- first defendant, butpossibly plaintiff was not satisfied to take judgment against firstdefendant only.
The learned Judge based his decision upon the judgment inLetchimanan v. Ramanathan Chetty, which he rightly points out isbinding upon him, although he veutures to doubt that it is correct.It was decided in 1901, but in practice does not seem to have beenconsistently followed since then possibly because it was overlooked.
Plaintiff appeals from the decision dismissing his motion forjudgment. Counsel urging that second defendant had been duly
1 1 -Browne's Reports 36S.
|927. served, and that Letchimanan v. Ramanathan Chetty (supra) hadDalton .J. been wrongly decided. There the Court (Bonser C.J. andWfttfcer ®rowne A.J.) held that service of summons under section 705 mustPer* Taniby be personal, the reason for that conclusion being set out in theOhetty judgment of Browne A/T.
Section 705 provides that when the plaintiff has obtained asummons and produces the instrument on which he sues “ theCourt may in its discretion make an order for the'Service on thedefendant of the summons above mentioned/* These words werestated to be very different from the less stringent requirements ofthe ordinary procedure, and sections 55 and 60 are mentioned. Onreference to the provisions of section 55 I must admit, however, theyseem to be not dissimilar to the provisions of section 705, save thatthe former are more precise. Section 55 referring to the summonsdirects that the Fiscal of the district “ shall cause the same to be dulyserved on the defendant or on each defendant if more than one.”Section 60 provides that service shall be personal whereverpracticable, otherwise as the Court may direct. It was furtherpointed out that service on the defendant ” as required bysection 705 was similar to the requirement for service in the Billsof Exchange Act, 1855. Reference to section 1 of that Act (1819 Viet. c. 67) shows that plaintiff was required to file an affidavitof personal service. But it further goes on to show that personalservice could be dispensed with, and this would seem to have beenoverlooked by Browne A.J., if the Court had given leave to proceedas provided by the Common Law Procedure Act, 1852. Section 17of that latter Act (15 & 16 Viet. c. 76) provides, just as in thecase of section 60 of our Code, that sendee of the writ of summon*whenever it may be practicable, shall be personal, but the Court isempowered to order, where personal sendee cannot be effected, thatplaintiff be at liberty to proceed as if personal sendee had beeneffected, subject to such conditions as the Court might deem fit tomake. No useful analogy therefore, it would be seen, can be drawnfrom the Bills of Exchange Act, 1855, to support the contentionthat under section 705 service must be personal, and by no othermethod. Further, there is nothing in English practice in pro-ceedings under Order XIV. which supports, by way of comparison, .any such construction of section 705. It is of interest in this latterconnection to note that, prior to the Civil Procedure Code, 1889, thepractice laid down under Ordinance No. 8 of 1856 in Ceylon inrespect of claims for a debt or liquidated demand in money arisingout of a contract express or implied, e.g., on a promissory note, wasalmost similar to that under 18 <£ 19 Viet. c. 67 (see Thompson *Institutes vol.p. 384-5). Personal service was not necessary if
an order of the Court was obtained under section 1 of the Ordinancefor service to be effected in some other,way.
( 445 )
Counsel has not been able to cite any reported case in which the 1927.soundness of the decision in Letchimanan v. Bamanathan Chettj DaIjTOK j
(supra) has been previously doubted, but there is no doubt that the
Courts have in practice allowed substituted service in proceedings pet% ■Tamh>iunder Chapter LIU. This, of course, as the learned Judge in the ChettyCourt below points out, is quite, inconsistent with the interpretationplaced upon section 705 by Browne A.J., for he holds that themanner in which a defendant in summary proceedings is to bebrought into Court is strictly prescribed by section 705, which hoholds requires personal service, and that manner is absolutelysubstituted for that given in Chapter Vni. It has further beenpointed out that in the Bank of Madras v.. Ponnesamy 1 theCourt (Clarence and Dias JJ.) in proceedings under Chapter LIU.recognized that service upon a person other than the defendant wasgood service if the person upon whom service was effected was thedefendant's recognized agent. That, decision was, however, priorto 1901.
I regret I am unable to agree with the conclusion of the learnedJudges in Letchimanan v. Bamanathan Chetty (supra) on thisquestion. I am unable to see any such variation between theprovisions of section 705 and section 55, which would in my opinionjustify one in reading into section 705 after the words “ service onthe defendant ” the word “ personally. ” If that was intended, itseems to me it would have been so stated. In any case I am unableto see on what principle in one case any more stringent provisionsfor service should be required than in the other. What justicerequires equally in every case is that the defendant should havenotice, and I am unable to agree that the provisions of Chapter VIU.of the Code do not apply to summary proceedings under ChapterLUI.
In support of his motion for judgment plaintiff filed a certificateof the Registrar of Business Names' showing that the defendantswere registered as partners in the business. In view therefore ofthe provisions of section 64, service of the summons upon the firstdefendant, as agent for the second defendant, was good, the formerbeing empowered as partner to accept service on his behalf.
I would, therefore, set aside the order of the trial Judge dismissingplaintiff’s application for judgment and direct that judgment heentered for the plaintiff in the sum of Rs. 2,821.33, with interest nsprayed, and costs. The decree will be drawn up in terms of thisdecision by the trial Judge.
Garvin J.—I agree.
– 9 S. C. 0.169.
MATHER PERI TAMBY CHETTY