046-NLR-NLR-V-48-MEERALEVVAIPetitioners-and-SEENITAMBY.-Respondent.pdf
140
Meeralevvai v. Seenithamby.
1947
Present: Soertsz S.P.J.
MEERALEVVAI, Petitioner and SEENITHAMBY, Respondent.
518—Application for restitutio-in-integrum in C. R.
Batticaloa, 1,014.
Civil procedure—Defendant in jail—How summons should be served on him—Substituted service of summons on last known place of abode—Meaningof word “ abode ”—Civil Procedure Code, ss. 68, 839.
The defendant was in jail at the time of the institution of the action.The plaintiff sought to serve summons through the officer in charge ofthe Mahara Jail, but the report was that the defendant was not in thatjail. Later, the plaintiff asked for substituted service of summons on thelast known place of abode .of the defendant. This was allowed, butthe summons was affixed on some part of the house in which thedefendant lived when he was free.
Held, that the substituted service was bad (1) because in a case like thiswhere the plaintiff himself knows that the defendant is in prison he mustascertain the particular prison in which the defendant is confined andserve summons on him in the manner indicated by section 68 of the CivilProcedure Code, (2) because the summons was not affixed to thelast known place of abode as was directed, for according to the plaintiffhimself the last known place of abode was the Mahara Jail; the word“ abode ” is a word of wide connotation and includes both places oftemporary stay and of habitual residence.
SOERTSZ SfJ.—Meeralevvai v. Seenithamby.
141
A
PPLICATION for restitutio in integrum in respect of a case'insti-tuted in the Court of Requests, Batticaloa.
T. Olegasegarem, for the defendant, petitioner.
C. Renganathan, for the plaintiff, respondent.
Cur. adv. twit.
February 17, 1947. Soebtsz S.P.J.—
It is unfortunate that this action which was instituted nearly sevenyears ago and in which decree was entered in July, 1941, has to be re-opened, but there is no alternative.
It is common ground that when this action was instituted, the defendantwas in jail and continued to be there till decree was entered against himand the sale in execution took place. Section €8 of the Civil ProcedureCode which is made applicable to cases in Courts of Requests by section808 of the C. P. C. provides that—
“ If the defendant be in jail, the summons shall be delivered by theFiscal to the officer in charge of the jail in which the defendantis confined, and such officer shall cause the summons to beserved upon the defendant. The summons shall be returnedthrough the Fiscal to the Court from which it is issued with astatement of the service endorsed thereon, and signed by theofficer in charge of the jail.’*
In this case, the plaintiff sought to serve summons through the officerin charge of the Mahara Jail, but the report was that the defendant wasnot in that jail. The defendant was required to give further particularsto enable the Fiscal to have summons served. He, thereupon, askedfor summons to be served through the officer in charge of the Kandy,Mahara, Welikada and Jaffna Prisons. He was directed to give any onecorrect address. He did not do that but he submitted an affidavit andasked for substituted service by affixing the summons on the last knownplace of abode. This was allowed and the summons was affixed on somepart of the house in which the defendant lived when he was free.
In my opinion this substituted service was bad, firstly because in acase like this where the plaintiff himself knows that the defendant isin prison he must ascertain the particular prison in which the defendantis confined and serve summons on him in the manner indicated bysection 68 of the Code. If the plaintiff is diligent, this is an easilyascertainable fact; secondly, the substituted service was bad in that itwas not affixed to the last known place of abode as was directed, foraccording to the plaintiff himself the last known place of abode was theMahara Jail. The word “ abode ” is a word of wide connotation. Itincludes both places of temporary stay and of habitual residence. Inthe former class, for instance, would be what the well-known phrasecalls " the abodes of pain ” and a jail or prison would, I suppose, be anabode of pain.
I set aside the order made by the Commissioner and remit the casefor a date to be fixed for the defendant to file answer or to admit theplaintiff’s claim. Under section 839 of the Civil Procedure Code, Imake order that if the defendant admits the claim he be given two
142HOWARD CJ.—Gunawamdene v. The Chairman, D. R. C., Matara.
months’ time from that date to pay the amount due to the plaintiff withcosts. If he fails to do that, I direct that the costs of these proceedingsshall abide the final order of the Commissioner and will be in his discretion.
Order set aside.