047-SLLR-SLLR-2006-V-2-RAMANATHAN-AND-ANOTHER-vs.-SATHYASEELAN-AND-OTHERS.pdf
CA
Ramanathan and Another vs. Sathyaseelan and Others
369
RAMANATHAN AND ANOTHERvs.
SATHYASEELAN AND OTHERSCOURT OF APPEAL.
SOMAWANSA J (P/CA).
WIMALACHANDRA. J.
CALA 323/2004.
DC MT. LAVINIA751/03/SPL.
MAY 18.2005.
Civil Procedure Code – Section 60(2)-Substituted service of summons-Whenis it available? – Is it possible to serve summons by way of newspaperpublication?
After several unsuccessful attempts to serve summons on the 4th defendant,Court on the application of the plaintiff made order for substituted service ofsummons on the door of the premises. The fiscal reported that the defendantwas not living at the given address. The Court refused to fix the case for exparte trial against the defendant.
On leave being sought –
HELD:According to section 60 (2) it is only when personal service of summonscannot be effected, that substituted service should be allowed.
Substituted service should not be allowed unless the fiscal has reportedthat he is unable to effect personal service and the Court is satisfied onevidence that the defendant, is within the island.
Per Wimalachandra J :
“The order made by Court allowing the plaintiff’s application to servesummons on the 4th respondent by way of substituted service was incorrectwithout proof that the 4th defendant was in the island"
Substituted service is available where a defendant is avoiding summonsand not when the defendant is not living at the given address. The DistrictJudge was correct in refusing to fix the matter for ex-parte trial.
370
Sri Lanka Law Reports
(2006) 2 Sri L R.
There is no provision in the Code to serve summons by way of newspaperpublication.
APPLICATION for leave to appeal from an order of the District Court of Mt.Lavinia.
Cases referred to:Fernando vs. Fernando and Others 9 NLR 325
Palaniappa Chetty vs. Arnolis Hamy 22 NLR 368
National Bank of India Ltd. vs. Fernando 3 Brown’s 120
S. Mandaleswaran with P. Peramunagama for plaintiff-petitioners.
Manohara R. de Silva for 1 st defendant – respondent.
May 25, 2006.
WIMALACHANDRA, J.This is an application for leave to appeal from the order of the DistrictJudge of Mount Lavinia dated 18.08.2004. By that order the District Judgerefused to fix the case for ex parte trial against the 4th defendant.
After several unsuccessful attempts to serve summons on the 4thdefendant, the Court, on the application of the plaintiff made an order forsubstituted service of summons on the door of the premises in suit namely,No. 3 Fareed Place, Colombo. On 18. 08. 2004 the learned counselappearing for the plaintiff informed Court that summons has been servedon the 4th defendant by substituted service (Vide-J. E. No. 10dated. 9.01.2004) The Court observed that according to the fiscal’s report, the 4thdefendant is not living at the given address. The court then pointed out thatit was the duty of the plaintiff to find the correct address of the 4th defendantand to furnish it to Court. The Court refused to fix the case for ex parte trialagainst the 4th defendant. It is against this order the appellant has filedthis appeal.
On an earlier occasion upon an application made by the appellant, theCourt made order to serve summons on the 4th defendant by publicationin a newspaper. The appellant furnished the proof of publication on
CARamanathan and Another vs. Sathyaseelan and Others371
(Wimalachandra, J.)
On the same day the learned judge observed that there is noprovision to serve summons by way of publication in a newspaper. In myview this position of the learned judge is correct as there is no provision inthe Civil Procedure Code to serve summons by way of newspaperpublication.
On 22.01.2004 the 1st defendant filed a motion and informed the Courtthat the 2nd and 3rd defendants are dead and that the 4th defendant hadleft the given address.
According to section 60 (2) of the Civil Procedure Code it is only whenpersonal service of summons cannot be effected, the substituted serviceshould be allowed. It was held in the case of Fernando Vs. Fernando<1)that substituted service should not be allowed unless the fiscal has reportedthat he is unable, although reasonable exertion has been made by him todo so, to effect personal service and the Court is satisfied on evidence thatthe defendant, against whom substituted service is applied for, is withinthe Island.
In the instant case the Fiscal submitted a report dated 01.09.2003,stating that the defendants were not to be found at the given address.Thereupon, an application was made for substituted service by affixing thesummons on the premises. Whereupon the District Judge made an orderto issue the summons by substituted service.
The fiscal reported to that precept by swearing an affidavit that he hadaffixed a copy of the summons on the door of the premises at No. 3,Fareed Place Colombo 3, on 6. 01.2004.
The plaintiff on the strength of this return made an application to fix thecase against the 4th defendant ex-parte. However, the learned judge refusedto fix the case for ex-parte trial as against the 4th defendant, and directedthe plaintiff to furnish to the Court the new address of the 4th defendant.
In the instant case, it appears that the learned Judge took no evidenceto satisfy herself that the 4th defendant was in the Island, especially whenthe 1 st defendant had brought to the notice of Court that the 4th defendanthad left the Island.
372
Sri Lanka Law Reports
(2006) 2 Sri L ft
There was no evidence placed before Court to show that the 4th defendantwas in the Island. Since the 1st defendant had brought to the notice ofcourt that the 4th defendant had left the island it is imperative for the courtto satisfy itself that the 4th defendant, was in fact in the Island. The ordermade by the court allowing the plaintiffs application to serve summonson the 4th defendant by way of substituted service was incorrect withoutproof that the 4th defendant was in the island.
In Palaniappa Chetty vs. Arnolis Ham/2> objections were taken to anorder for substituted service of summons on three grounds, that it wasmade without a report that the Fiscal was unable to effect personal service,and without proof that the defendant was in the island, and without directingat what spot summons was to be served as substituted service. It washeld that all grounds of objection were good and that the order for sustitutedservice was bad.
The substituted service of summons is available where a defendant isavoiding summons and not when the defendant is not living at the givenaddress. It would be unreasonable to serve summons byway of substitutedservice by affixing a copy of the summons on a premises on which he isnot living. In this case before us there was no material before the Court asto the last known place of abode of the 4th defendant apart from thedescription of the defendant in the plaint that he is residing at the givenaddress.
It was laid down in the case of National Bank of India Ltd. vs. Fernando;(3)that in cases where personal service is not effected and a decree is soughtagainst a man in his absence, it is necessary that the greatest care shouldbe used in every step of procedure, and that the orders of the Court shouldbe strictly conformed to.
It seems to me that substituted service of summons is available wherea defendant is avoiding personal service of summons and not when thedefendant is not living at the given address. Therefore in my view the learnedDistrict Judge is correct in refusing to fix the matter for ex-parte trial.
For these reasons I affirm the order of the Additional District Judgedated 18.08.2004. Accordingly the application for leave to appeal from theaforesaid order of the Additional District Judge of Mount Lavinia is refusedwith costs.
SOMAWANSA, J. (P/CA) — / agree.
Application dismissed.