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Madras High Court
Gontla Venkata Pitchayya vs Sowdagar Mahomed Abdul Kareem Beg … on 11 February, 1914
Equivalent citations: (1914) 26 MLJ 368
Author: S Aiyar


Sadasiva Aiyar, J.

1. The first defendant is the petitioner in revision. An ex parte decree was obtained by the plaintiff against the petitioner for specific performance of an unregistered written agreement by which the defendants agreed to execute a registered rent deed in favour of the plaintiff. This ex parte decree was passed on the 16th August 1910. The first defendant was not personally served with the defendant’s summons in the suit. His permanent residence was Bezwada and the suit was brought in the Bezwada Munsif’s Court. When the process server went to serve him with the summons on 2nd July 1910, 1st defendant’s gumastah said that the 1st defendant had gone to Tirupathi and so the duplicate summons was affixed to the outer door of his house. The process-server was solemmly affirmed on the 5th July 1910 and deposed to the truth of his return to the above effect. The District Munsif treated the service by affixture as service duly made and after examining one witness for the plaintiff who proved that the unregistered agreement was executed by the 1st defendant gave a decree against the 1st defendant (decree was also passed against the other executant of the agreement, the 2nd defendant, but we are not concerned now with that matter).

2. When the suit for the specific performance, (O. Section 360 of 1910) was brought, the law in Madras seems to have been that an unregistered agreement to execute a rent-deed could be used and was admissible as evidence in a suit for specific performance of that agreement. See Srinivasacharlu v. Venkatarazu (1907) 17 M.L.J. 218. The fact that in February 1910, Benson and Krishnasami Aiyar, JJ. had doubted the correctness of that decision and had referred the matter to the Full Bench See Narayan Chetty v. Muthia Servai (1910) 21 M.L.J. 44. S.C. I.L.R. 35 M. 63 was probably not known in the mofussil then. The District Munsif therefore on 16th August 1910 treated the unregistered agreement on which the suit 360 of 1910 was brought in his court for specific performance as admissible in evidence and passed his ex parte decree on that date. On the 23rd August 1910, the 1st defendant put in a petition to the District Munsif to set aside the ex parte decree on the ground that he had gone on a pilgrimage to Benares in May 1910, that he returned to Bezwada only about the 13th August 1910, that he did not then know of the suit having been brought against him, that the ex parte decree of 16th August 1910 which was passed about 3 days after he returned to Bezwada came to his knowledge only on the 22nd August 1910 and on these grounds he applied to set aside the ex parte decree. This petition was dismissed by the learned District Munsif on the ground that the 1st defendant must have been informed by his clerk of the affixing of the summons in July to the outer door of the 1st defendant’s house, that the District Munsif did not believe the allegation in the first defendant’s affidavit (that the 1st defendant had gone to Benares) because the endorsement on the summons shewed that he had gone only to Tirupati and that the 1st defendant had signed ” the suit agreement”. On appeal, the learned District Judge confirmed the order of the District Munsif refusing to set aside the ex parte decree. The learned District Judge’s reasons are that the 1st defendant who was absent when the process-server took the summons for service to his house was not temporarily absent but was absent for an indefinite period and that the service by affixture was correctly effected in such a case and could be treated as due service. It was argued in this C.R.P. 558 before me that the endorsement of the process server itself shows that the 1st defendant was not duly served, (see the 2nd ground of the petition) and that ” the Court below failed to see that the plaintiff’s suit was not maintainable on the face of it as no suit could be brought on the basis of an unregistered agreement to lease. [Vide Full Bench decision in Narayana Chetti v. Muthiah Servai (1910) 21 M.L.J. 44 S.C. I.L.R. 35 M. 63 (see the 5th ground of the Revision petition] .This case Narayana Chetti v. Muthiah Servai (1911) 21 M.L.J. 978 was decided on 3rd November 1910, the reference to the Full Bench having been made by Benson and Krishnasami Aiyar JJ as I said before on the 8th February 1910. This ground of the Revision petition lends some support to the arguments of the learned Advocate General (who appeared for the respondent in this case) that the 1st defendant knowing of the suit, allowed it to be decreed ex parte on the 16th August 1910 as he was ignorant of the fact that the decision in Srinivasacharlu v. Venkataraju (1907) 17 M.L.J. 218 had been doubted by a Bench of this Court in February 1910 and that the matter had been referred to a Full Bench, that he, (1st defendant) after 16th August 1910 came to know of the fact and that thereupon he put in a petition on the 23rd August 1910 to set aside the exparte decree. (The decision in Narayana Chetti v. Muthia Servai (1910) 21 M.L.J. 44 S.C. I.L.R. 35 M. 63 has also been reported in the authorised reports See I.L.R. 35 M. 63.)

3. The argument of the learned Vakil for the petitioner before me was that as the process-server has merely stated in his return that the 1st defendant (petitioner) was alleged to have gone to Tirupati and as the process-server did not add that the date of the 1st defendant’s return to Bezwada was not known or was indefinite, the service was not duly made and that under Order IX, Rule 13 he (1st defendant) was entitled to have the ex parte decree set aside when the summons was not duly served. He relies upon several cases, one of which is Abraham Pillai v. Donald Smith (1896) I.L.R. 20 M. 324. That case in Sakima v. Gauri Sahai (1903) I.L.R. 24 A. 302 goes, however too far and has been doubted in Visvanathan Chetti v. Arunachellam Chetti (1911) 21 M.L.J. 978 and it is also the decision of a single learned Judge. Visvanathan Chetti v. Arunachallam Chetti (1911) 21 M.L.J. 978. follows Sankaralinga Mudali v. Ratnasabapati Mudali (1897) I.L.R. 21 M. 324 in which it was held that if the absence of the defendant is for an indefinite period, service by affixture was sufficient. Whether the absence was for an indefinite period or not, has to be ascertained from the circumstances of the particular case. The learned vakil (Mr. P. Narayanamurti) for the petitioner contends that unless the process-server’s return expressly shews that the person who gave the information to the process-server of the absence of the defendant from his usual place of residence is stated in the return itself to have added that the date of the return of the defendant to his usual place of residence is not known the court could not legally accept the service as due service. I am unable to accept this contention. The court might find the indefiniteness of the period of absence not only from the express words in the return (if there are such express words) but also from the other circumstances as appearing from the return. In the case in Sankaralinga Mudaliar v. Ratna sabapati Mudali (1897) I.L.R. 21 M. 324 in which it was held that the Subordinate Judge was justified in declaring the defendant as duly served with summons on the basis of the process-server’s return, I find on looking into the printed records that the process-server merely said in his return that ” The families of the said person’s house and the owner of the neighbouring houses say that it was two days since the defendant went to Tinnevelly,” and that he (the process-server) therefore affixed it to the street-door. In the present case the information that the 1st defendant, a resident of Bezwada had gone on a pilgrimage to Tirupati and not to a neighbouring village reasonably led to the presumption that his absence was indefinite as the District Judge points out. If the 1st defendant’s case is true that he had left Bezwada on a pilgrimage to Benares a month before the summons was affixed to the outer door, the presumption is still stronger that his absence was for an indefinite period. Following Sankaralinga Mudali v. Ratna-sabapati Mudali (1897) I.L.R. 21 M. 324 I hold that the Munsif was justified in declaring that 1st defendant was duly served and in passing an ex parte decree against the 1st defendant (petitioner). In Sitaramasawmi v. Kolandi Patra (1912) 17 C.W.N. 999 where the defendant had left the jurisdiction of the court (as in this case) it was held that the affixing of the summons to the outer door of his house could be rightly held by the court as due service. In that case also there was no express statement by the process-server that the date of the return of the defendant from Vizagapatam (to which he had gone) from his usual place of residence, (in Cuttack) was not known and yet it was held that service by affixture could be legally held to be sufficient. In Sitaramaswami v. Kolandai Patro (1912) 17 C.W.N. 999 reliance was placed for the defendant upon the observations in Sakina v. Gauri Sahai (1903) I.L.R. 24 A. 302, Sakharam v. Padmaar (1906) I.L.R. 30 B. 623 and Abraham Pillai v. Donald Smith (1906) I.L.R. 29. M.324 (just as these decisions were relied on by the Petitioner’s Vakil in this case), but as pointed out by Mookerjee J., and Carnduff J. ” In some of these cases the rule was too broadly stated and it may be a question whether the decision in every one of these cases can be justified by the most liberal interpretation of Rule 17″ Sitaramaswami v. Kolandai Patro (1912) 17 C.W.N. 999 followed Sankaralingam Mudali v. Ratnasabapathi Mudali (1897) I.L.R. 21 M. 324 and I also propose to follow that case in preference to other cases. Lastly this is a petition for revision under Section 115, and I am very doubtful whether even if the lower Courts were wrong in their law that service under these circumstances by affixture was due service, whether they could be considered as having acted without jurisdiction or illegally or with material irregularity. I am inclined to doubt the correctness of the decision in Wajir Khan v. Nagnawar (1909) 6 A.L.J. 45 which held that interference in revision can be properly made in such a case. Of course, in a case of patent and extreme hardship, the powers under Section 15 of the Charter Act could be invoked and used by this Court.

4. In the result this Civil Revision Petition is dismissed with costs.

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