The Judgment of the Court was as follows:

Gentle, J.:— On the 13th December, 1944, the Plaintiff instituted a suit in this Court against the Defendant claiming about Rs. 1,850 as damages for non-acceptance of goods. An affidavit of service of the writ of summons having been duly filed, which was affirmed by a Munib Gomasta of the Plaintiff and a process-server in the employment of the Sheriff of Calcutta, and there being no appearance by the Defendant, an ex parte decree was passed on the 12th February, 1945, for the amount claimed with costs. This was after a formal hearing at which the evidence on behalf of the Plaintiff was given. On the 4th June, 1945, the Defendant issued an application pursuant to Or. 9, r. 13 of the Code of Civil Procedure praying that the decree should be set aside on the ground that he had not been served with the writ of summons in the suit. Mr. Justice McNair, who heard the application; came to the conclusion that there had been service and he dismissed the application with costs. The Defendant now appeals against the learned Judge's dismissal.

2. As is not uncommon in applications of this kind there are many matters which are in controversy—affirmations by one party and denials by the other. I propose to refer as little as possible to the controversial, matters. The Defendant at one time was a partner of a firm named Shyamlal Mohanlal; the nature and the other partners of that partnership need receive no reference. The business address of the partnership was at one time at 176, Cross Street, Calcutta. It would seem, according to a statement of the Defendant in his affidavit, that at the date of the institution of the application, the business address was at No. 89C, Talpukur Road, Belaghata. The Plaintiff's Manib-Gomasta in his affidavit says that this partnership carried on business at one time at No. 137, Cotton Street and there was a board with the name of the firm outside the premises. At No. 137, Cotton Street, Calcutta there was a Company named the Indian Yarn Trading Co., Ltd. of which, the Defendant says, he is the Managing Director. In the cause title to the suit and in the writ of summons the Defendant is sued for self and as manager or karta of a joint Hindu family carrying on a joint family business under the name and style of Shyamlal Mohanlal at No. 137, Cotton Street, Calcutta. It is common ground that the Defendant resides with his wife and family in a flat at No. 192, Chittaranjan Avenue, Calcutta. This is a five-storeyed building; there are many shops on the ground floor and about 30 separate residences on the upper floors; the Defendant occupies one such residence on the first floor. The service which is alleged to have been effected was by affixation of a copy of the writ of summons to the outer door or entrance of the Defendant's separate residence. This service, according to the affidavit, is alleged to have been made on the 16th January, 1945. On the 22nd January, Registrar of this Court received a letter purporting to be written by the Indian Textile Agency of 192, Chittaranjan Avenue, Calcutta stating that the writer regretted that the enclosed writ was left in the shop on the. 18th during his absence, probably through inadvertence and it was being sent to the Court to protect the interest of the parties concerned. The writ of summons or a copy of it, in this suit was enclosed with that letter. On the 22nd January, the Registrar forwarded to the Plaintiff's attorney a copy of the letter which he had received from the Indian Textile Agency.

3. The decree having been passed on the 12th February, 1945, nothing further appears to have been done. It would seem, however, that there was a dispute between the Plaintiff and the firm of Shyamlal mohanlal; the Defendant, be he a partner or be he a karta of a joint Hindu family carrying on business in that name, had consulted Messrs. Fox & Mondal, Attorneys of this Court with respect to that dispute. On the 10th April, 1945, those Attorneys wrote to the Plaintiff's attorneys a letter, which is headed: “Clts:— Messrs. Shyamlal Mohanlal,” stating that they had been informed that the Plaintiff's attorneys had filed a suit against the firm and they intimated that the service would be accepted. On the 17th May Defendant's attorneys again wrote to the Plaintiff's attorneys that no writ of summons had been served. On the 18th May the Plaintiff's attorneys replied, the letter is headed “Bhakatram Serowgie v. Jhabermull Dudhwalla,” which is the cause title of the present suit, acknowledging Messrs. Fox & Mondal's letter of the 17th and stating that a suit had been filed and decreed, the” clients of Messrs. Fox and Mondal were all along aware of the suit and the decree which had been passed, and the writ of summons had been duly served. On the same day, Messrs. Fox and Mondal replied stating that Jhabermull Dudhwalla, the Defendant, was also one of their clients and that they were forwarding to him a copy of the letter which they had received and asked for a copy of the plaint, the affidavit of service of the writ of summons and decree. No reply was received. On the 21st May, Messrs. Fox and Mondal again wrote stating that their client had instructed them that the writ of summons had not been served and he had no knowledge of the filing of the suit against him or of the decree. Eventually copies of the pleadings and other documents in the suit were obtained and the present application was made.

4. One further matter requires reference. In the affidavit filed by the Plaintiff's Manib Gomasta, in opposition to the application, there are statements that the Defendant saw the Plaintiff after service of the proceedings and after the decree and he made offers of settlement of the claim, which offers were rejected. Those statements are denied by the Defendant in his reply.

5. The sole ground upon which it is sought to have the decree set aside is that service, which the Code requires, was never effected. The application is made under Or. 9, r. 13 of the Code of Civil Procedure which enables a Defendant in a suit in which an ex parte decree is passed to apply to the Court by which the decree was passed for an order to set it aside and such an order shall be made if the applicant satisfies the Court that the summons was not duly served. That provision must mean that he was not duly served in accordance with one or other of the provisions of the Code dealing with the service of process.

6. Some of the rules of Or. 5 of the Code relate to and provide for service and I propose only to quote the relevant portions of those rules.

7. Rule 12:

“Wherever it is practicable, service shall be made on the Defendant in person”.

8. Rule 17:

“Where the serving officer, after using all due and reasonable diligence, cannot find the Defendant…. shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides”.

9. This rule has been amended by the High Court and the provisions which prevail here are slightly different to those in the Code. The rule in this Court is as follows:

“Where the Defendant is absent from his residence at the time when the service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time……..the serving officer shall affix a copy of the summons on the outer door…………”

10. Substantially the difference between the provisions in the Code and in this Court's amendment is the substitution by this Court of the words “where there is no likelihood of his being found thereat within a reasonable time” in place of the words “where the serving officer, after using all due and reasonable diligence cannot find the Defendant.” Before the Code of 1908 was passed the Code of 1882 was in force; sec. 80 of the earlier Code, corresponded to r. 17 of Or. 5 of the 1908 Code; it reads as follows:

“If the serving officer cannot find the Defendant, the serving officer shall affix a copy of the summons on the outer door of the house in which the Defendant ordinarily resides”.

11. I now turn to the affidavit of service. It is affirmed by Sagarmull Khemka, the Plaintiff's Manib Gomasta and Abdul Rahaman, one of the Sheriff's bailiffs. The substance of their two statements comes to this: On the 13th January, 1945 at 2-30 P.M and on the 15th January, 1945, at 1-15 P.M the two deponents went together to No. 192, Chittaranjan Avenue, Calcutta for the purpose of identifying the premises, the portion in which the Defendant resides, to identify the Defendant, and to effect service. On each of those two occasions, they went to the portion on the first floor occupied by the Defendant, outside of which the Manib Gomastha called aloud the Defendant's name, no one came out and, the affidavit continues, that in-spite of their best efforts they could not find the Defendant or anybody else authorised or empowered by him to accept service. On the 16th January at about 5 P.M the same deponents again went to the Defendant's residence and each of them says that inspite of their calling aloud the said Defendant by name nobody came out, whereupon the bailiff's officer affixed on the outer door of the first floor apartment a copy of the writ of summons. In that affidavit nothing is said that any other steps were taken except the general words “inspite of our best efforts we could not find the Defendant.” The nature or extent of the “best efforts” is not mentioned. Reference should be made to another affidavit which the Manib Gomasta of the Plaintiff swore during the course of the proceedings before Mr. Justice McNair. The affidavit was affirmed on the 19th June, 1945. In paragraph 5 he says that on the 16th January, 1945, that is, the last of the three days when he and the bailiff's officer went together to the Defendant's residence, the bailiff's officer alone called out the Defendant's name. In the same affidavit the Manib Gomasta says that, prior to the service of the writ of summons, he went to the Defendant's shop at No. 137, Cotton Street, where there used to be a signboard with the name “Shyamlal Mohanlal” outside and this was found to have been removed and in its place another board with the name “Indian Yarn Trading Co., Ltd.” was found; consequently he instructed the Plaintiff's solicitors to have the summons served on the Defendant at his residence. In that affidavit he does not say that any enquiries were made as to the whereabouts of the Defendant. The bailiff's officer made no enquiries at the Defendant's address, which he must have seen in the writ of summons which was in his possession. That is the address given in the cause title, which must be given, and which probably in many cases indicates why there is jurisdiction in this Court to entertain a suit. All that the bailiff's officer did, as I see it, was to go with the identifier on three afternoons—a Saturday, a Monday and a Tuesday, call the name of the Defendant outside the outer door of his residence at the flat, and then, on the third occasion, affix a copy of the writ of summons to the outer door. In the Defendant's affidavit he says that he was invariably at his business address at No. 137, Cotton Street every day from 10 A.M to 8 P.M, his wife and children were in the residence and his wife had informed him that, at or about the time the Sheriff's officer with the identifier, are stated to have gone to his residence, they were there and they heard nothing.

12. Now, the question here is whether the provisions of r. 17, Or. 5 of the Code, as applicable in this Court, were complied with by the Sheriff's officer when he went to the premises to effect service; or whether there was compliance with any other provision of the Code, so that it can be said that the Defendant was served with the writ of summons. Rule 12 of the Code, to my mind, makes it manifest that there must be personal service upon the Defendant when it is practicable. In the ordinary course of justice, the Defendant should be given personal notice whenever it is practicable to do so. The Defendant lives, works and carries on business in Calcutta. It is nowhere suggested that he was trying to avoid service or was hiding from his creditors or from anyone else. It is when personal service is impracticable that other provisions in the Code, dealing with different methods of service, come into operation. There have been a number of decisions upon the provisions, and similar to the provisions, which are now found in rule 17. I propose first to refer to one in this Court at the time when the Code of 1882 was in force. Sec. 80 is the section then concerned. At that time there was no requirement in the Code that the Sheriff's officer should affix a copy of the writ of summons after using all due and reasonable diligence. In Cohen v. Nursing Dass Auddy(1), the Chief Justice Sir Comer Petheram, in the course of his judgment made these observations:

“Sec. 80 of the Code is intended for eases in which the writ should be affixed in the way required by that section after a proper attempt has been made to find the Defendant. It is true that you may go to a man's house and not find him, but that that is not attempting to find him. You should go to his house, make enquiries and if necessary follow him. You should make enquiries to find out when he is likely to be at home, and go to the house at a time when he can be found. Before service like this can be effected it must be shown that proper efforts have been made to find out when and where the Defendant is likely to be found, not—as seems to be done in this country—to go to his house tin a perfunctory way, and because he has not been found there, to affix a copy of the summons on the outer door of has house”.

13. These observations have been repeated in a number of later decisions and in each instance, as far as I am able to ascertain, with complete approval. It must be remembered that they were made at a time when the statutory requirements regarding service of this nature provided only that if the serving officer could not find the Defendant, the officer should affix a copy of the summons on the outer door of the house in which the Defendant ordinarily resides. Nevertheless, the Chief Justice Sir Comer Petheram construed the provision in the way in which his observations make it clear. The decision in the case of Re: Sakina v. Gauri Sahai(2) is also a decision under sec. 80 of the 1882 Code. There it was held:

“Where a serving officer finds a Defendant to be away temporarily from home, and knows where he is, it is not a good service if he thereupon does no more than fix the summons to the outer door of the house; but he must make further efforts to effect personal service”.

14. In the present case the serving officer did nothing and the rule now, in my view, is more stringent than that of sec. 80 of the Code. In the case Re: Boldeodas Lohia v. Subkarandas Goenka(3), Mr. Justice Page considered the provisions of rule 17 prior to the Calcutta amendment. In the course of his judgment he said:

“In my opinion, the effect of the authorities is that all available steps to effect personal service must be made before resort is had to the provisions of Or. 5, r, 17. It is not enough to attend at the ordinary place of residence or of business or the place where the Defendant personally works for gain, and to conclude that substituted service may be effected merely because at the time when the serving poen attends at such place the Defendant does not happen to be there”,

and later

“In any opinion, the serving peon before he can take advantage of the provisions of Or. V, r. 17, must attend at the right place and he must attend at a time when he may reasonably expect that the Defendant will be present, and if he fails to find the Defendant he must take reasonable steps to discover where the Defendant may happen to be. In my opinion, the observations of Sir Comer Petheram, C.J, made in 1882 are at least as opportune to-day as they were 32 years ago”.

15. The stringency and requirement of the provisions as to service as laid down by sec. 80 of the 1882 Code were recognised in Bhomshetti Jinappashetti v. Uma Bai(4). That decision is by the learned Chief Justice of Bombay and another learned Judge. As pointed out earlier, the observations made by Mr. Justice Page in Bal-deodas Lohia v. Subkarandas Goenka were made with reference to the provisions of rule 17 prior to the Calcutta amendment. The difference in the wording of the rule between the amendment and the original text is the substitution of the words “where the Defendant is absent from his residence at the time when the service is effected on him, and there is no likelihood of his being found thereat within a reasonable time “in place of the words” where the serving peon with all due and reasonable diligence cannot find the Defendant.” In my opinion, the present wording, so far as this Court is concerned, is no less stringent than it was prior to the amendment. The words “there is no likelihood of his being found thereat within a reasonable time” pre-supposes that the officer must make reasonable enquiry to ascertain whether the Defendant is likely to be found at his house within a reasonable period of time. There is a failure to comply with the provisions of the Code if the serving officer is merely content to go to the Defendant's premises, call out his name and, when there is no reply, to affix the summons. Incidentally, although the Code does not require more than one visit to be paid, it has been customary, so far as Calcutta is concerned, for three visits to be paid and the affixation takes place on the third visit, in the absence of any response to any call of the Defendant's name outside his house. The words in the Calcutta rule are much more stringent than the wording of sec. 80 of the Code of 1882 and I have already pointed out how Chief Justice Petheram construed that section and what was required to be done by the serving officer before he was entitled to effect service by affixation.

16. The matter does not altogether rest there. Undoubtedly the Defendant is a businessman and ordinarily would be occupied at his business premises throughout the day. It is not reasonable, in my view, to expect to find him at his residence on a business day during business hours. The process-server in this case went to the Defendant's residence at 1-15 P.M, 2-30 P.M and 5 P.M on business days. Those are not times when one could properly and reasonably expect to find him at his residence. If it is required to find a businessman during those hours the proper and correct place to go to for that purpose is his business premises. The serving officer in this case did not do that; maybe, he omitted to do so by reason of his being told by the Plaintiff's Manib-Gamasta to effect service at the Defendant's residence. In my view, there is no compliance with rule 17 unless the serving officer goes to the Defendant's business premises to find him during business hours or if, he goes to a business man's private residence, he should go there during such hours of the day when ordinarily he would he expected to be found at those premises. In my opinion, there was a failure to comply with the pro visions of rules 12 and 17, when the purported service was made upon the Defendant.

17. Even in the absence of service, if the Defendant, otherwise becomes aware of the proceedings, nevertheless he is entitled to avail himself of the provisions of Or. 9, r. 13 of the Code and to have an ex parte decree set aside in the absence of service. This is made perfectly clear by the decision in the case Re: Kassim Ebrahim Saleji v. Johurmull Khemka(5) a decision by Sir Lancelot Sanderson, C.J, Mr. Justice Woodroffe and Mr. Justice Mookerjee. In that case the affixation took place at premises other than the Defendant's premises, but the observations in the course of the judgment relating to the Defendant's knowledge of the existence of a proceeding are of importance. At page 452 the learned Chief Justice said:

“I may say at once that in one sense I regret that we have to allow this appeal because I have not much doubt in my mind, speaking for myself, that the institution of these proceedings did come to the knowledge of the Defendant, and I do not think that the Defendant has any merits in this application. But that is not the question. If I were to decade that what was done in this ease was sufficient service of the writ, It might be taken as a precedent on other occasions.”

18. Mr. Justice Woodroffe at page 456 observed:

“That the Defendant had otherwise knowledge of the institution of the suit is highly probable. But that is not sufficient, if service is not formally proved.”

19. Mr. Justice Mookerjee at page 458 made an observation to the same effect.

20. In my opinion and I hold, that there was insufficient compliance with the provisions of rules 12 and 17, as amended by this Court, of Or. 5 to justify one holding that the Defendant was served with process and the writ of summons in the suit. That being so, he was entitled, in the present application which he has made under Or. 9, r. 13, to have the ex parte decree set aside.

21. I am unable to agree with the decision of Mr. Justice McNair which must be set aside.

22. In my view, this appeal must be allowed. Costs will be the Defendant's costs in cause.

23. Written statement to be filed within 14 days, discovery within 7 days thereafter, inspection forthwith after (discovery, suit to appear on the prospective list within one month from to-day. Liberty to apply for early hearing.

Ormond, J.:— I agree that the decree in this case must be set aside. For this result it is sufficient for me to say that even if all the contentions raised by the Plaintiff are assumed to be correct, even then on the bare admitted facts, this decree has to be set aside.

24. I will merely first briefly refer to two major contentions raised for the Plaintiff simply for the purpose of conveniently disposing of them. It was contended for the Plaintiff that the Defendant had changed his business: that whereas at one time he had been carrying on business under the name and style of Shyamlal Mohanlal at No. 137, Cotton Street, when the Manib Gomastha of the Plaintiff paid a visit to No. 137, Cotton Street, he found the sign-board of Shyamlal Mohanlal had been changed and he found another sign-board of the Indian Yarn Trading Co., Ltd. The Defendant himself states in his petition, paragraph 9, that the partnership, that is to say, the partnership of Shyamlal Mohanlal, had been dissolved in 1942. There is also considerable controversy in the affidavits as to the precise address at which the Defendant was at different times, or at the material time, carrying on business. Some reliance was placed in the judgment of the learned Judge in the Court of first instance on this aspect of the matter. He observed as follows:—

“In view of the difficulty which the partners themselves found in deciding where they should carry on business it does not seem unnatural that the Plaintiff should have decided that it would be safer to serve the writ at their residence.”

25. For my purpose, however, it is, in my view, wholly unnecessary to go into this aspect of the matter. The Manib Gomastha of the Plaintiff or the process-server serving the summons for the Plaintiff was in any event fully entitled to serve the summons, if they so desired, at the residence of the Defendant provided it was properly served. They were entitled to take this course irrespective of any controversy as to where the Defendant carried on business.

26. Another contention raised on behalf of the Plaintiff was that the Defendant, in fact, knew of the summons before the suit was heard; and it has been argued that the proper inference to draw from the facts emerging from the affidavits was that, in fact, the very summons itself in this case reached the hands of the Defendant, The interesting sequence of events by which the summons was returned to the Registrar and sent by him to the attorney of the Plaintiff within a very few days of its being taken by the process-server to No. 192, Chitta-ranjan Avenue has a bearing on this matter. But I do not, however, propose to go at all into this part of the matter, since the decision in the case of Kassim Ebrahim Saleji v. Johurmull Khemka (a decision of Sanderson, C.J Woodroffe and Mooker-jee, JJ., being a decision of this Court of Appeal from an order in the Original Civil Jurisdiction of this Court) is one which, in my view, we are clearly bound to follow. In that case it was clearly decided, as is stated in the judgment of all the three Judges composing the Bench that even if the Defendant knew in fact of the summons before the suit, yet if the summons was not duly served the Court was bound to set aside the decree.

27. I therefore deal with the matter purely on the admitted facts which for the present purpose are these:—

The writ of summons was taken for service at No. 192, Chittaranjan Avenue by one of the Sheriff's bailiffs accompanied for the purpose of identifying the Defendant by the Manib Gomastha of the Plaintiff. Secondly, those two persons must have had with them both the original summons and with it a copy of the plaint. It is hardly necessary to note that this is, in fact, expressly provided by Or. 5, r. 2 “that every summons shall be accompanied by a copy of the plaint,” and this provision is repeated in Chapter 8, rule 2 (b) of the Rules of this Court on the Original Side. Thirdly, in those documents the Defendant was described as carrying on a joint family business under the name and style of Shyamlal Mohanlal at No. 137, Cotton Street within the aforesaid jurisdiction. Forthly, resuiting from that and quite irrespective of whether the firm of Shyamlal Mohanlal had been dissolved or not and quite irrespective of whether the Defendant was carrying on the business as a joint family business or otherwise, there was nothing before these two persons serving the writ of summons, which could be taken to lead them to conclude that the Defendant had ceased to operate as a business man. Fifthly, those two persons went on Saturday, Monday and Tuesday, that is, 13th, 15th and 16th January at the hours of 2-30 P.M, 1-15 P.M and 5 P.M to serve the writ of summons. They have stated in their affidavit what occurred. I have no reason whatever to dispute the accuracy of the statements in that affidavit. Indeed the argument for the Defendant has proceeded on the assumption that the facts there stated are those which actually occurred. They go to the portion of the premises on the first floor of the building comprising 192, Chittaranjan Avenue. Therefore there is no suggestion that they knocked or attempted to enter but, as I understand the usual practice is, they stand at the entrance to the premises and they call aloud the name of Jhabarmull Dudhwalla. Nobody at all comes out and they have no conversation with anybody. The affidavit in relation to the first two visits goes on to say:— “On reaching there I called aloud by the name of the said Jhabarmull Dudhwalla but no body came out and inspite of our best efforts we could not find the said Jhabarmull Dudhwalla or anybody else authorised or empowered by him to accept service of the said writ of summons on his behalf.” Similar statements in precisely similar words describe what happened on the 3rd day, that is, the 16th January. The affidavit then proceeds in relation to the 3rd day, namely, the 16th January. “Thereupon my said co-deponent served the said writ of summons on the said Jhabarmull Dudhwalla the Defendant above-named by affixing on the outer door of the said portion in the first floor of the said premises No. 192, Chittaranjan Avenue, Calcutta, a true copy of the said writ of summons together with a copy plaint in my presence.” There is no dispute that as stated in the petition, paragraph 5, the premises No. 192, Chittaranjan Avenue consists of a big five-storeyed building in which there are over 30 residential suites and a large number of persons residing in the premises, who are strangers to each other and there are shops on the ground floor. There is no suggestion that these suites are flats similar to those built in the European quarter of Calcutta where each flat is self-contained with its own front door which is separately locked. It would seem more probable, as Counsel has suggested, that the different suites either had no separate front doors and were not built structurally separate from each other or that in fact people living in the suites normally live there with their doors open. In any event that does not affect one way or the other the decision to be arrived at in this case.

28. Those being the admitted facts, was the writ of summons duly served within the meaning of r. 13, Or. 9 or not? The material provisions for effecting service to which I should refer are those in Or. 5, r. 12 which lay down that wherever practicable service shall be made on the Defendant in person. There is also Or. 5, r. 15 which, however, it is not suggested, is attracted to the present case, since no suggestion has been made that there was any adult male member of the family at these premises, when the process-server went to serve the writ of summons. My learned brother has explained the manner in which r. 17 of Or. 5 for the Calcutta High Court has been amended from r. 17 of the Code of Civil Procedure in force in other High Courts. It will be seen that the rule in force in this High Court is in two parts. The rule provides for service of the writ of summons by affixation of a copy of the summons on the outer door. This, as laid down in the rule, can only be done, either, where the Defendant refuses to sign the acknowledgment as mentioned in the first part, or, in the circumstances mentioned in the second part. With the first part this case is not concerned. To allow it to be done within the second part of the rule several conditions have to exist. Firstly, the Defendant must be absent from his residence at the time when service is sought to be effected on him, secondly, there is no likelihood of his being found thereat within a reasonable time, and thirdly, there must be no agent or other person upon whom service can be made. As I have already mentioned in this case it is admitted that there was no agent or other person upon whom the service could be made, and it is common case that the Defendant was absent from his residence at the time when service was sought to be effected. Thus the whole matter turns on the words “there is no likelihood of his being found thereat within a reasonable time.” It may be observed in passing that those words are capable of slightly different interpretations, one that they should mean “before a reasonably early subsequent date,” another that they should mean “at a time of day which is within reasonable hours.”

29. Now there has been a practice long adopted in this Court for the process-server to go on three separate dates, that is, on three separate occasions to the place where he desires to serve the writ of summons and then, having gone on three occasions, to affix a copy of the summons on the outer door. I wish to state emphatically that I have no desire or intention to disturb this settled practice in respect of its adoption in all suitable cases. The object of the practice no doubt was that the wholesome practical rule of practice should be adopted by process-servers in this Court to ensure that a reasonable opportunity would be given for the Defendant to be found before this method of service of writ of summons by affixation should be adopted. In a proper case the three unsuccessful attempts in themselves establish the existence of the conditions or of the fact that “there is no likelihood of the Defendant being found at the premises within a reasonable time.” Cases commonly no doubt occur when the process-server goes to certain premises and finds no servant there and no one there who knows the Defendant or who can give him any information as to where the Defendant is or when he is likely to return. For such cases, generally speaking, it is obviously a convenient practice to insist that the process-server will go at least three times before he affixes the writ of summons at the outer door. As I see it, the rule of practice for the process-server's three visits has been adopted as a precautionary measure for the benefit of the Defendant, so that he will be given every reasonable opportunity of being found on the premises himself, even in, a case where the premises are locked-up and there are no servants or anyone else present: so that the Defendant may be given a reasonable opportunity of being found there himself and being personally served. Three visits at a time of day, however, when the Defendant is bound to be out as in the present case are proof of nothing. This goes nowhere towards establishing “that there is no likelihood of the Defendant being found at the premises within a reasonable time.” I do not at all accept any suggestion that three visits at a time of day when there is no likelihood at all of the Defendant being found at the premises is itself sufficient by the mere piling up of the three visits; knowing well that he could not be found there at that hour of the day. To take an obvious illustration:— If the process-server has positive knowledge that the Defendant is not in his residence between the hours of 1 and 2 every day, and supposing there are no servants and no one at those premises who knows the Defendant, it does not advance the process of proof, or the process of establishment of the fact that there is no likelihood of his being found thereat within a reasonable time, if the process-server should go to those premises between those hours 50 times or 1001 times. I have had occasion in a previous case (an unreported case so far as I know, where the Defendant was working, to the best of my re-collection, in the Port Commissioners' Office in war time) to hold that there was no proof whatever, that there was no likelihood of his being found within a reasonable time, when in that case also the process-server went to the Defendant's residence on three occasions during normal war-time office hours. Those facts are analogous to the present case. Here, as I have found, there was every reason for the process-server and the Identifier to know that the Defendant was a business-man; and I do not consider that there could be any expectation of his being found at his residence during the hours when he should be expected to be away at his business place in a different locality of the city.

30. One practical aspect of this matter arises, which is this.

31. The writs of summons of this Court are served by process-servers working in the Sheriff's office. It may be that normal work in the Sheriff's office is pursued in normal business hours. There may be a natural inclination for process-servers to desire to serve writs of summons during business hours rather than to work at hours which, in other offices, would be described as over-time. As to this, if it is desired to serve a writ of summons in this Court at the Defendant's residence in a case where the Defendant is known or expected to be or likely to be away from his residence during business hours, then it follows that suitable arrangements must be made between the Plaintiff and the Sheriff's office, or in the Sheriff's office, for process-servers to serve writs of summons either early in the morning,—which is a convenient time for people making journeys in this climate—or in the evening after office hours.

32. It will be a question no doubt on the facts of every case whether it is established that there is no likelihood of the Defendant-being-found at the place where the writ of summons is sought to be served within a reasonable time. I wish to make it clear, that provided the process-server goes to the premises during a time when there is every likelihood, in view of the known way of life of the Defendant, of his being present, that is to say, at his residence out of business hours if he is a business man or within business hours if he is a business man when the writ of summons is taken to his business office—then the rule of practice allowing affixation after three unsuccessful attempts and no information of any sort (after reasonable efforts) of any likelihood of the Defendants being available, will of course continue without being in the slightest affected by these observations. The three visits in themselves will obviously not relieve the process-server from the duty which lies on him to make all reasonable enquiries with a view to obtaining positive information as to when the Defendant is likely to be found at the premises. If information is obtained that the Defendant is likely to be found at the premises either within a reasonable time on the same day, or within a reasonable date either at the same or at some other time of day, then it will be incumbent on the process-server to make every attempt to serve the summons personally. These observations are, I think, sufficient to indicate my reasons, in addition to those mentioned by my learned brother why in the present case. I agree that the decree has to be set aside. I entirely agree also in regard to the order in respect of costs.