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Present: Sir Charles Peter Layard, Chief Justice, and Mr.Justice Wendt.
FERNANDO v. FERNANDO et al.
D. C., Kurunegala, 1,710.
Substitutedservice—Requirements—Lastknown place ofabode—Affidavit
st. 60, 87, and 371.
Substituted service should not be allowed unless the Fiscal hasreported that he is unable, although reasonable exertion has beenmade by him to do so, to effect personal service,, and the Court issatisfied on evidencethat the defendant, against whom substituted
service is applied for, is within the Island.
Wheresubstituted service is allowed, the Court mustprescribe
the mode of substituted service, and it must do so on proper mate,rials which satisfy it that the mode selected is the most perfectsubstitute . for personal service which, under the circumstances, itis possible to obtain.'
In a return of personal service the affidavit of the process servershould state the place where the service was effected.
fJlHE facts sufficiently appear in the judgments.
J. C. Pereira, for third defendant, appellant.Sampayo, K.C., for the plaintiff, respondent.
Cur. adv. vult.
7th May, 1903. Layabd, C.J.—
This is an appeal from an order of the District Judge of Kurune-gala refusing to open. up a judgment entered against the thirddefendant, appellant.
The appellant and two others were sued in this action, which wasinstituted in July, 1899, on a promissory note dated 25th March,1899. On the 27th July, 1899, summons issued, and I presumethat as the third defendant was described in the plaint as of Waha-kula, the 'Fjscal must have endeavoured to serve it in that village.There appeared difficulty in serving the summons, for it was returnedto the Court more than once and had to be reissued five times. Thereturns to the summons were in some cases “ Not to be found,” andsometimes to the effect that the third defendant, was not known,which point to the third defendant not being in the. village mentionedin the plaint from the 27th July to the 28th November, and appa-rently not even then known in that village. On the 25th November
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■1903.1899, plaintiff's Proctor moved, as personal service was impractic-
7‘ able, that the Fiscal be directed to affix the summons to the lastLatakd C.J. known place of abode of the third defendant. In support of thatmotion no material by way of affidavit or otherwise was placedbefore the District Judge to show that it was impracticable to servethe third defendant with .a summons, or that the third defendantwas in the Island. The Judge can under the circumstances men-tioned in section 60 of the Civil Procedure Code prescribe anothermode of service as equivalent for personal service. He can only, how-ever, act under that section after the Fiscal has reported in writingthat he is unable, although reasonable exertion has been made by himto do so, to effect personal service. Now, in this case there was nosuch report before the Court; on the contrary, the record was thatthe last return to the summons made by the Fiscal was to the effectthe summons was not served for want of time. That return clearlydoes not disclose inability to serve the process, but that sufficienttime was not allowed the Fiscal • by the Court to effect service.Even, however, assuming that there was such a return before theCourt, there was no evidence adduced before the Court to showthat the third defendant was within the Island; this is expresslyrequired by section 60 before the Court can prescribe a substitutedmode of service. The Court’s order allowing the motion wasabsolutely wrong for want of the required Fiscal’s report, andfurther for want of evidence showing that the third defendant waswithin the Island. Further, the order for substituted service isbad because the Judge left it to the Fiscal to decide what the thirddefendant’s last known place’of abode was. Where a Court pre-scribes substituted service under section 60 and wishes to reach adefendant by affixing a summons to any particular house or pre-mises, the Court itself should prescribe the house or premises in itsorder. To enable the Court to so prescribe there must be materialbefore the Court as to the last known' place of abode of the defendant.After this order was made by the District Judge the summons wastwice returned to the Court unexecuted, but on the 10th January,•1900, the plaintiff’s Proctor produced to the Court a return by theFiscal that the summons had been affixed to the. last known placeof abode of the third defendant. The Fiscal’s process server’saffidavit, which is dated the 5th July, 1900, discloses that theprocess server swears that he affixed " a translation copy of thesummons on the within-named second and third defendants’ lastknown .place of abode.”
*To begin with, this is not a compliance with the Judge’s order,for he prescribed the affixing of the summons, not of " a translation
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copy ” oi it. Again, the Fiscal should have stated -on what househe affixdd the translation copy and in which village the said housewas situated. The Fiscal’s process server’s affidavit under section371 must set out the “ facts of the service effected,” t.e., in this caseit should have stated whether the house was occupied or empty, ifoccupied by whom occupied, and how he knew the house was thelast place of abode of the third defendant. The Fiscal’s return andthe process server's affidavit are absolutely silent as to the village orplace where the house was situated and they do not even condescendto say in what Province or district in the Island it was situated.
The District Judge then proceeded on the strength of this returnto enter a decree nisi against the third defendant. The Judge inentering that decree absolutely disregarded the provisions of theCivil Procedure Code. Section 5 of that Code provides expresslythat the Judge must hear the case ex parte; the District Judge inthis case did not hear a tittle of evidence, and it is obvious that thedecree nisi was wrongly entered up.
Thereafter notice of decree nisi was issued. It appears from therecord that great difficulty was experienced in serving that notice,and the notice was reissued several times for service by the Fiscal.
The decree nisi was entered, as I said above, on the 10th January,1900, and the time fixed in the decree for showing cause was the5th February, 1900. On that date, the plaintiff not having issuedany notice of the decree, the Judge allowed a notice to issue on-thethird defendant giving him notice that, unless cause was shown tothe contrary on the 26th February, 1900, the decree would be madeabsolute. On the 26th February, 1900, the date fixed by thenotice for showing cause, the notice had hot been served. TheJudge on that day, without extending the date for showing cause,simply ordered that the former notice should reissue. This noticewas returned several times to the Court and reissued for service,and on the 17th July, 1900, the Court oh the application of theplaintiff’s Proctor, and without any material being before it, madeorder that the stale notice should again reissue for service on thedefendants, including the third defendant, at Moratuwa.
On the 14th of. August, 1900, on the strength of the Fiscal’sreturn, dated the 9th of August, 1900, that he had caused copies ofa notice marked A, as would appear from the affidavit of his processserver marked B, to be served on the first and third defendants,the Judge entered judgment against the third defendant.
The affidavit of the process server is most unsatisfactory hestates that he is “ personally known to and was acquainted with thefirst and third defendants in the said case.’’ Now, the name of the
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1®®®*third defendant is a very common name, and there (appears from
7‘the evidence in this case to be several of that name in Moratuwa
Latard C.J. alone—how the process server could possibly know whom theplaintiff wished to reach nowhere appears. Then he swears heserved the notice marked A on the first and third defendants. ‘'Hegives no information, to the Court as to where the notice was served.He does not state whether the service was made on them when theywere together or whether there were two services. The affidavit,that accompanies the Fiscal’s report does not, as required by section371, 6et out the facts of the service effected. The notice that wasserved merely informs the person who it may reach that a decreenisi has been passed, and that unless sufficient cause be shown onthe 25th day of February, 1900, such decree will be made formal.It is true that the notice has endorsed in it “ Extended and reissuedfor service on the first and third defendants .returnable on the 14thAugust, 1900,” but it does not state that on that day, unless causeis shown to the contrary, the decree nisi will be made absolute.Notwithstanding these defects, however, the District Judge madethe decree absolute on the 14th August, 1900. On the 29th Novem-ber, 1900, plaintiff applied for writ to issue to enforce the judgment,and the writ issued on the 13th December, 1900. Although nocopy of this writ was served on the appellant, property of his wasseized and sold without any notice to him.
In view of the above circumstances the appellant applied to theDistrict Court to set aside the decree entered against him on the14th August, 1900. The record, it appears to me, shows grossirregularity in the obtaining of the decree, and from the evidenceof the appellant it would appear that he was not served with asummons, decree nisi, or copy of writ. His evidence, which isuncontradicted, establishes that he did not have “ due information ”of the proceedings, and in view of section 87 of the Civil ProcedureCode, I am of opinion that the District Judge should have set asidethe decree and directed that the action should be proceeded with asfrom the stage at which the decree for default was made.
The District Judge in his judgment found that the summons wasserved by affixing copy to third defendant’s last knqwn place ofabode. There is no material in the record to support that finding.The process server who affixed that notice has. hot been called asa witness, and there is no evidence, even if we need his affidavit,to show where that notice was fixed, and, if it was affixed asdeposed to in that affidavit, that the house to which it was affixedwas the last known place of abode of the appellant in the KegallaDistrict. There is not even evidence that he ever lived or even
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stayed in that house. Then the District Judge finds that notice 1008.of decree nisi was served on the third defendant at Moratuwa. The May 7‘third defendant has denied it, and the process server has not been ^>ro CWcalled to prove that he served on the third defendant whom heidentifies in Court. Even if we looked to his affidavit, the processserver does not there depose to having served the process at Mora-tuwa, and his affidavit certainly does not clearly identify the -appel-lant as the person on whom he served the document marked A.
The Korala, who says a summons was served on him, which theappellant suggests is the notice of decree nisi, bears the same nameas the appellant. Both counsel for the appellant and respondentadmit that the Sinhalese word used by the Korala was probablyone that covered both a notice and summons,, which would do awaywith the difficulty raised by the District Judge that the summonsitself never went to Moratuwa. The Distriot Judge further sayshe does not believe the Korala would have allowed the process
server to serve the process with him and would not have pointedout the mistake. The recorded evidence shows that the Koraladid point out the mistake to the process server and refused to acceptthe summons. He could not have done more, and I cannot under-stand how the Judge has overlooked that portion of the Korala'sevidence. The Judge further says he cannot believe that theKorala did not tell the third defendant or his father. I do not seewhy he must necessarily have told either, but, assuming he did,the appellant would not have received “ due information ” of theproceedings. Lastly, the Judge says: “ I am not satisfied thatthird defendant (appellant) had not notice of the proceedings;that is not sufficient under section 87—he must have received* due ’ information of the proceedings.” He also adds:“ He
believes that the third defendant received notice of the decree nisi,but he does not find when and where he- received such notice andthat such notice was due notice.” There is in my opinion no mate-rial on which the Judge could find that third defendant receiveddue information of the proceedings. The evidence is all the otherway, and as the proceedings in the. Court below teem with irregu-larities, 1 am of opinion that the decree of the Court below, datedthe 14th August, 1900, should be set aside and the action be pro-ceeded with <as and from the stage at which the decree for default -was made—provided the third defendant do pay into Court withintwo weeks of the receipt of this record by the District Court theamount of Rs. 570.92, with inter st thereon at i9 per cent, fromthe 25th March, 1899, unti- pay: .ent to Court. In the event ofsuch payment not being in ie wit bin such date the decree of *the
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1903. District Court dated the 14th August, 1900, must stand. The7v appellant is entitled to the costs of his application 'In .the DistrictItAYASP CJ. Court and of this appeal
I entirely agree with what has fallen from the Chief Justice, andwould only add a word on account of the importance of the case asa' matter of practice. Although the contrary practice, that ofleaving the Fiscal to discover what was the last known place of abode,of the defendant—a practice which prevailed under the old Rulesand Orders—appears to die hard, it is perfectly clear from thewording of section 60 of the Civil Procedure Code that the Courthas to prescribe the mode of substituted service, and it must do soupon proper materials which satisfy it that the mode selected is themost perfeot substitute for personal service which under the circum-stances it is possible to obtain. Accordingly section 61 prescribesthat the substituted service shall be as effectual as if it had been madeon the defendant personally. Before substituted service by affixingthe process to some “ place of abode ” is prescribed, the Court mustbe satisfied that the defendant is within the Island, and that afterreasonable exertions in that behalf, that place is the last place ofabode of the defendant that has been discovered. In the presentinstance all the information the Court had before it in orderingsubstituted service was the statement in the caption of the plaint,
were defendants were described as “all of Wahakula in
This appears to be a village in the Regalia District. It appearsfrom the proceedings at the inquiry into appellant’s motion that theappellant was a native of Moratuwa. He was residing at Wahakula,in connection with his plumbago trade, in 1899, and he there signedthe promissory note sued upon in March, 1899, but he left thatvillage two or three months later. It is suggested that at sometime thereafter he resided in Katana in the District of Negombo,and the caption to the petition of appeal describes him as “ now ofKatana.” In view of these facts the Court should have been satis-fied of some unsuccessful effort to find the defendant at Moratuwaand Katana before it resorted to substituted service.
I also agree that in a return of personal service the accompanyingaffidavit of the process server shodld certainly state the place wherethe service was effected. That is an important one among the“ facts of the service ” of which section 371 speaks. As for theservice of the decree nisi, the evidence is practically all one wayand in favour of the appellant.
I think the appellant should be left in to defend.
FERNANDO v. FERNANDO et al