059-NLR-NLR-V-33-KARUPPEN-CHETTY-v.-WICKREMASINGHA.pdf
1931
GARVIN S.P.J.—Karuppen Cketty v. Wickrcmasingha.Present: Garvin S.P.J. and Drieberg J.
KABUPPEN CHETTY v, WICKBEMASINGHA.
42$—D. G. Matara, 5,375,
Summons—Substitutedservice—Last known place of . abode—Civil Procedure
Code, $. 60.
An order directing substituted service of summons under section 60iof the Civil Procedure Code must specify the last known place of abodeof the defendant at which such service is to be effected.
A
PPEAL from an order of the District Judge of Matara. The factsappear from the judgment.
Navaratnam, for defendant, appellant:
Weerasooria, for plaintiff, respondent.
October 28, 1931. Garvin S.P.J.—
This is an appeal from a refusal .to set aside a decree. The action wasinstituted under the provisions of Chapter LITE, of the Civil Procedure Code.The plaintiff obtained summons and upon the return to the summonsmade by the Fiscal to the effect that the defendant was not to be foundin the village, an application was made to the Court for substituted service■supported by the usual affidavit. The application was for substitutedservice by affixing the summons to the defendant's last known place ofabode. The Court made order allowing the motion. The summons wasthen reissued with the direction that it should be affixed on the lastknown place of abode of the defendant. In due course the Fiscal reportedthat this had been done, and on the returnable date in the absence ofthe defendant decree was entered for the plaintiff. Execution proceedingswere then taken. While these were pending the defendant appeared in■Court and applied to the Court to set aside its decree upon the groundthat he had had no notice of the proceedings. Some evidence was takenat which an endeavour was made to prove that the summons had infact been affixed on the last known place of abode of the defendant.Thereafter the learned District Judge held that substituted service hadbeen effected i*n accordance with the order of the Court and dismissedthe defendant's application expressing, however, the opinion that if thedefendant made an application under the provisions of-section 707 of theCivil Procedure Code he should “ be given a chance to defend himself onreasonable terms ".
The defendant has appealed and it has been urged on his behalf apartirom the general ground that he had no notice of the proceedings that■(a) the order for substituted service was irregular upon the ground thatthe order did not specify the particular house or the particular spot towhich the summons was to be affixed,, and (b) that in any event theevidence adduced at the inquiry has failed to prove .that it was as amatter of fact affixed to what has been shown to be the defendant's lastImown place of abode.
234
GARVIN J.—Karappen Chettj «. Wiektemasingha.
The first of these two arguments is strongly supported by two judg-ments of this Court. The earliest of these is the case of Fernando v.Fernando1, in which the Court laid emphasis upon the necessity for pre-scribing with care and accuracy the. particular form of service which inthe judgment of the Court may be substituted for the ordinary require-ment of personal service, and in the course of his judgment, Layard C.J.said:“ To enable the Court to so prescribe there must be material before
the Cojirt as to the last known place of abode of the defendant. ’ ’ This-manifestly is a reference to the case in which the form of substitutedservice directed by the Court is the affixing of the summons on .the lastknown place of residence of the defendant, and Wendt J., the othermember of the Court, in dealing with the same aspect said: “Beforesubstituted service by affixing the process to some place of abode isprescribed the Court must be satisfied that the defendant is within theIsland and that after reasonable exertion in that behalf that place is thelast place of abode of the defendant that has been discovered.”
Now, in the case before us there was no information before the Courtas to .the last kne vn place of abode of the defendant, nothing in shortbeyond the description of the defendant in the plaint as a resident of .the village of Kongala.
The next case to which we were referred in the course of the argumentis the case of Palaniappa Chetty v. Arnolishamy2. This is also a judgmentof Bench of T&o Judges in which when dealing with the objection thatthe Court did not direct at what spot the summons was to be served assubstituted servicel Shaw J. upheld it citing the case of Fernando v.Fernando (supra) and made the following comment:—
“ There the Judge took no evidence to satisfy himself that thedefendant was in' the Colony and there the Judge also left it to theFiscal to decide at what spot he should serve the substituted summonsas being the last known place of abode of the defendant. All theseare rendered necessary by section 60 of .the Civil Procedure Code andthe non-observance of all those particulars was held to be fatal to theservice, in the case I have referred to.”
These two cases strongly support the contention of Counsel for the-appellant, and it seems to me that the objection based upon the groundthat no place was specified in the order for substituted service as the lastknown place of abode of the defendant is well founded. Counsel for therespondent, however, invited our attention to the case of The NationalBank of India, Ltd. v. A. T. Fernando3, which he thought was an authorityfor the proposition that a general direction by the Court when makingan order for substituted service that it should be made by affixing the- summons to the defendant’s last known place of residence was a sufficientcompliance with the requirements of the Law. If this- be right, theninasmuch as the case I have referred to is a judgment of the Full Benchit will be binding on us and we should have to admit his contention.But it is quite clear from a careful perusal of the judgment of Bonser C.J.that this point was neither considered nor decided. The service in that
> (1903) N. L. B. 325.2 (1920) 22 N. L. B. 368.
£ Browne’s Beports 120.
AKBAB J.—Bartholomeusx v. Deen.
235
case was attacked for certain .specified reasons, one of them being theinsufficiency of .the process server's' affidavit that the original summonshad been served, and the other being that as a matter of fact substitutedservice had not been effected at the defendant’s last known place ofresidence. Indeed, the learned Chief Justice clearly^ indicates a strongdoubt as to whether in the circumstances of the case substituted serviceshould have been issued at all. The very doubts to which learned Counselreferred themselves indicate that, far from affirming the proposition forwhich he contends, the view taken by the Court was that, even if the orderfor substituted service which, as 1 have said before, the Judges appear tothink was wrongly made, be treated as correctly and properly made,the evidence failed to show that it had been complied with in fact.
For the reasons given I think this appeal must be allowed. It isunnecessary therefore to consider at length the second point taken byCounsel which, in my opinion, is also well founded.
The appellant will be entitled to the costs of this appeal and of hisapplication fn the Court below.
Drieberg J.—I agree.
Appeal allowed.
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