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Case Number

Appeal from Original Order No. 48 of 1923, from an order of Babu Baij Nath Sahay, Subordinate Judge of Palamau, dated the 11th January, 1923.,F.A 48 of 1923

Advocates

C.C Das (with him S.C De and Nawal Kishore Prasad), for the appellant.
Parmeshwar Dayal (for Devaki Prasad Sinha), for the respondent.

Judges

Jwala Prasad
Foster, JJ.

Acts

provisions of rules 17 and 19 of Order V of the Civil Procedure Code
provisions contained in Order V, rule 17, of the Civil Procedure Code.
rules 10 to 20 of Order V of the Civil Procedure Code. Rule 10
rule 19 of Order V of the Civil Procedure Code
Order IX, rule 13, of the Civil Procedure Code.
rule 10 of Order V
Court.Rule 12

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Smart Summary

Judgment Summary — Jwala Prasad, J. (with Foster, J., concurring)

Factual and Procedural Background

The suit was instituted on 9 May 1922 originally against Bhagwat Bux Rai (the appellant's father). After the original defendant died, the appellant (the son) was substituted as defendant on 17 June 1922. A peon reported the death of the original defendant and later gave evidence about service of a summons (with a copy of the plaint) on the appellant. An ex parte decree was passed in the suit. The appellant sought to set aside that ex parte decree under Order IX, rule 13, Civil Procedure Code, arguing inter alia that the summons was not "duly served." The trial Court found that the summons had been personally delivered to the appellant and that he refused to give a receipt. On appeal the Court examined the record, the peon's evidence, the statutory provisions governing service (Order V rules 10–20 and Order IX rule 13), and authorities cited by the parties before delivering its decision.

Legal Issues Presented

Whether the appellant satisfied the Court under Order IX, rule 13, Civil Procedure Code, that the summons was not "duly served" so as to warrant setting aside the ex parte decree.
Whether the omission by the serving officer to affix a copy of the summons on the outer door or some other conspicuous part of the defendant's house (as contemplated by Order V, rule 17, when acknowledgment is refused) vitiates an otherwise personal delivery of the summons and renders service invalid.

Arguments of the Parties

Appellant's Arguments

The appellant's counsel criticized the reliability of the peon's evidence and urged rejection of it.
It was contended that, because the peon did not state that he affixed a copy of the summons on the outer door or other conspicuous part of the defendant's house as required by Order V, rule 17, the summons was not "duly served" and therefore the ex parte decree should be set aside under Order IX, rule 13.

Respondent / Court Below (as represented in the record)

The peon's evidence and the record show that the summons and a copy of the plaint were delivered to the defendant personally, the defendant refused to sign an acknowledgment but retained the documents, and the trial Court accepted that report and found personal service.
It was maintained (implicitly in the respondent's case and in the trial Court's finding) that the defendant had knowledge of the suit and that the mode of service effected was sufficient in the circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maruti v. Vithu	The opinion cites this case among authorities considered on the point of service of summons.	The Court noted it as one of several authorities showing divergence of opinion; no specific holding from this case was relied on beyond indicating authorities were cited on both sides.
Rajendro Nath Sanyal v. Jan Meah	Referenced as an authority cited in the submissions concerning service requirements.	Considered among the body of authorities illustrating differing approaches to compliance with service provisions; the Court did not specify a detailed application from this case in its reasoning.
Gopaldas Girdharilal v. Sayad Islu	Held (as reported) that where summons were delivered personally to the defendant, service is complete and omission by the process-server to obtain a signature does not undo the service (principle of substantial completion).	The Court cited the holding approvingly as supporting the view that personal delivery completes service; it relied on the reasoning that personal delivery coupled with possession of the documents by the defendant sufficed in the present case.
Diwan Chand v. Mussummat Parbati	Reportedly took the opposite view (requiring stricter compliance with service formalities).	The Court acknowledged this contrary authority and regarded it as part of a divergence of opinion; it did not follow that stricter approach in this case.
Kassim Ebrahim Saleji v. Johurmull Khemka	Listed among authorities bearing on service of process and compliance with statutory rules.	Referenced as part of the body of authorities suggesting stricter compliance in some decisions; the Court treated these as showing lack of unanimity and resolved the issue on the facts and statutory scheme in favour of upholding the service.
Kistler v. Tettmar	Cited as one of the various authorities on service practices.	Noted among the cases showing divergent approaches; the Court did not derive a distinct controlling principle from it in the opinion delivered.

Court's Reasoning and Analysis

The Court carried out a fact-based and statutory analysis in several steps:

Fact-finding: The Court reviewed the proceedings from institution of the suit (9 May 1922) to the passing of the ex parte decree and the evidence adduced. It accepted the trial Court's finding—made after seeing the witness—that the appellant knew of the suit, that the am-mukhtear (Munshi Nauranglal) had knowledge and would have informed the appellant, and that the peon's report and evidence were credible. The Court therefore accepted that a copy of the summons and plaint were delivered to the appellant, who refused to give a receipt.
Framing the statutory question: Order IX, rule 13, permits setting aside an ex parte decree if the defendant (1) satisfies the Court that the "summons was not duly served" or (2) shows he was prevented by sufficient cause from appearing. The trial Court's finding disposed of the second ground against the appellant; the appeal thus focused on the first ground (whether summons was "duly served").
Burden of proof and evidence: The Court emphasized that the onus lay on the appellant to prove non-compliance with the statutory mode of service (Order V, rule 17 in particular). Rule 17 requires affixation of a copy on the outer door (or conspicuous part) where the defendant or agent refuses to sign acknowledgment or cannot be found. The Court noted that the appellant did not elicit from the peon evidence that a copy had not been affixed; effectively there was no evidence presented by the appellant to substantiate the contention that rule 17 had not been complied with.
Statutory scheme and rules construed together: The Court examined rules 10–20 of Order V. Rule 10 prescribes delivery/tendering of a copy signed and sealed; rule 12 directs personal service as far as practicable; rule 16 requires obtaining the defendant's signature to an acknowledgment of service where feasible; rule 17 provides for affixation where the defendant refuses to sign or cannot be found; and rule 19 empowers the Court to inquire and declare whether summons was duly served or to order service it deems fit.
Application to the facts: Here, the peon personally delivered the summons and plaint to the defendant, who refused to sign but retained the documents. Because the defendant retained the copies, the peon had no spare copy to affix to the house. The Court held that the defendant could not take advantage of his own refusal to sign and thereby render service invalid. The Court invoked English Supreme Court practice (personal service by giving and leaving a copy and showing the original on demand) as analogous to what occurred.
Treatment of authorities: The Court acknowledged a divergence of authority. It noted that Gopaldas Girdharilal v. Sayad Islu supports the view that personal delivery completes service even without acknowledgment; Diwan Chand v. Mussummat Parbati took the opposite view; other cited cases tended to favour strict compliance. Confronted with this split, the Court examined the statutory wording and practice and concluded that substantial personal service in the circumstances before it was sufficient to be "duly served."
Role of rule 19: The Court observed that upon the peon's report, the trial Court recorded an order declaring the summons personally served, which was in accordance with rule 19's power to satisfy itself and declare summons duly served or to order service as it thinks fit. The Court treated the peon's report and the lower Court's order as compliance with the law and the practice of that Court.
Dissent/concurring elaboration (Foster, J.): Foster, J. agreed with the facts and concluded that rules 17 and 19 should not be read rigidly. He explained the practical difficulty of requiring a spare copy to be carried out every time to guard against a defendant's refusal to sign. He observed that rule 19 enables the Court to declare service duly made in such circumstances and thereby concurred in dismissal of the appeal.

Holding and Implications

Holding: The Court dismissed the appeal and ordered costs. The core ruling may be summarized as: APPEAL DISMISSED.

Implications:

Direct effect: The appellant's challenge under Order IX, rule 13 (that the summons was not duly served) failed. The trial Court's finding that the summons had been personally served was accepted, and the ex parte decree was not set aside.
On broader questions of law: The opinion records that authorities are divided on whether omission of certain formalities (e.g., obtaining an acknowledgment or affixing a copy) necessarily invalidates personal service. The Court, after construing the statutory scheme (Order V rules 10–20 and Order IX rule 13) and on the facts before it, concluded that personal delivery to and retention by the defendant sufficed in this case and that the defendant could not take advantage of his own refusal to sign. The opinion does not purport to announce a sweeping new rule beyond the circumstances presented; it principally resolves the dispute on the facts and statutory interpretation in this particular case.

This summary is confined strictly to the matters and text contained in the provided opinion. No information not present in the opinion has been added.

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Nageshwar Bux Rai v. Biseswar Dayal Singh

Jwala Prasad, J.:— After stating the facts, as set out above, proceeded as follows:—

The learned Counsel on behalf of the appellant has criticised the evidence of the peon and has asked us to reject it as being unreliable. We have considered the entire proceedings connected with the suit from the time that it was launched in Court on the 9th May, 1922, up to the time that the ex parte decree was passed. We have also considered the evidence adduced on behalf of the applicant. We have not the least doubt that the appellant knew of the institution of the suit against him. The suit was originally instituted against his father after a preliminary dispute between him and the plaintiff in a criminal Court arising out of the mortgage transaction in question. The original defendant, however, died and in his place the appellant, his son, was substituted on the 17th of June, 1922. At that time the am-mukhtear of the appellant's father was Munshi Nauranglal and it was upon the information given by him that the peon reported the death of the original defendant Bhagwat Bux Rai. Therefore the am-mukhtear, whose duty it was to look after the litigation of the estate in Courts, knew of the institution of the suit and he must have in the regular course of his duty informed the appellant, who succeeded to the estate on the death of his father, of the suit brought against him. There are circumstances which lend support to the evidence of the peon that the service was bona fide and that the denial of the appellant of all knowledge of the suit is untrue. Therefore we are not prepared to differ from the estimate of the evidence made by the trial Court who had the advantage of Seeing the Witnesses before it, and accordingly we accept its finding of fact that the summons with a copy of the plaint was delivered to the appellant and he refused to give a receipt for the same. Therefore the issue upon which the parties went to trial in the Court below must be found against the appellant.

The learned Counsel on behalf of the appellant, however, contends that the determination of that issue does not settle the case, inasmuch as upon the facts elicited during the trial of the case it is apparent that the summons was not “duly served”, and consequently it is urged that the appellant is entitled to have the decree set aside under Order IX, rule 13, of the Civil Procedure Code. That rule lays down that an ex parte decree shall be set aside upon the defendant (1) satisfying the Court that the “summons was not duly served” or (2) “that he was prevented by any sufficient cause for appearing when the suit was called on for hearing.” The latter ground has been concluded by the finding of the Court below referred to above which we have accepted as a correct finding.

The question now raised for the first time before us by the appellant is therefore confined to the first ground. We have now to see whether the defendant has satisfied the Court that the summons was not “duly served”. To appreciate this ground on behalf of the appellant the learned Counsel for the appellant has referred to the provisions contained in Order V, rule 17, of the Civil Procedure Code. It is said that after the defendant refused to sign the receipt of the summons it was incumbent on the peon to “affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on buisness, etc.” The learned Counsel says that as the peon does not say that he affixed a copy of the summons upon the house of the defendant the summons was not “duly served.”

Order IX, rule 13, requires the applicant to satisfy that the summons was not “duly served”, and the onus is therefore upon the appellant. It was therefore for the appellant to elicit from the peon, who has been examined on behalf of the respondent, as to whether he did or did not affix a copy of the summons on the house of the defendant as required by rule 17. No attempt seems to have been made by the appellant to substantiate this ground by evidence. The evidence offered by him on this point is nil. Although a point of law may be taken in appeal for the first time, yet it is subject to the well recognized rule that the evidence on the record is complete and no further evidence is necessary to substantiate the point. There is no evidence of the requirement of rule 17 not having been complied with by the peon, and it is therefore not open to the appellant to take this point in appeal for the first time.

Assuming that the peon did not affix a copy of the summons on the house of the defendant, it is a question of grave doubt as to whether the personal service, such as in the present case, can be impugned as defective and illegal on the ground of irregularity alleged by the appellant. Various authorities have been cited on both sides in this case in support of their respective contentions and these are Maruti v. Vithu, Rajendro Nath Sanyal v. Jan Meah, Gopaldas Girdharilal v. Sayad Islu, Diwan Chand v. Mussummat Parbati, Kassim Ebrahim Saleji v. Johurmull Khemka and Kistler v. Tettmar. The cases referred to above only lead to the conclusion that there has been a sharp divergence of opinion upon the point raised. Stanyon, J., Acting Judicial Commissioner of Nagpur, in Gopaldas Girdharilal v. Sayad Islu held that where the service of summons has been by delivering or tendering of it to the defendant personally the service is complete, and no irregularity by the process-server or other ministerial officer of the Court such as the omission of the process-server to obtain the signature of the defendant could undo it. He would support the view upon the maxim quod fieri non debet factum valet.

Broadway, J., of the Punjab Chief Court, on the other hand, took a directly opposite view in the case of Diwan Chand v. Mussammat Parbati.

The other cases are not very directly on the point, but they seem to hold that the provisions relating to service of summons should be strictly complied with.

Now, the mode of service of summons has been prescribed by rules 10 to 20 of Order V of the Civil Procedure Code. Rule 10 says:

“Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.”

Rule 12 requires that so far as practicable service shall be made on the defendant in person. Rule 16 requires that when the serving officer delivers or tenders a copy of the summons to the defendant personally he shall require the signature of the defendant to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the orignal summons. Rule 17 requires that where the defendant or his agent refuses to sign the acknowledgment or the serving officer cannot find the defendant and there is no agent to accept service of summons on his behalf, etc., he 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 or carries on business, etc.

The summons in this case was served by delivering a copy of the summons together with a copy of the plaint to the defendant personally (the defendant being personally known to the peon). The defendant refused to grant a receipt therefor, but retained the summons and the copy of the plaint. Therefore when the defendant took the summons on the plaint, the peon had no other copy to affix upon the outer door or other conspicuous part of the house. If the defendant had refused to take the summons and to sign the acknowledgment, in that case the peon would have had a copy of the plaint and the summons to be affixed upon the house of the defendant. The defendant by his conduct rendered it impossible to have the copies affixed on the house and he cannot be permitted to take advantage of his own wrong and to plead that the omission rendered the service invalid. Now, under the Supreme Court rules in England “A writ is personally served by giving to and leaving with the defendant a copy of the writ and showing him the original, if within reasonable time he demands to see it.” This is what was exactly done in the present case. The defendant was in his house and copies of the summons and the plaint were given to and left with him in his hands. Therefore the requirements of rule 17 were complied with.

Even if there was any irregularity, I do not think that the substantial and direct service on the person of the defendant as is prescribed by rule 10 of Order V is so vitiated as to hold that the summons was not “duly served”, and thus to entitle the defendant to have the ex parte decree set aside under Order IX, rule 13. We find that upon the report of the peon, the serving officer, the Court recorded an order that the summons on the defendant was personally served. This order was in accordance with rule 19 of Order V of the Civil Procedure Code which requires that when summons is returned under rule 17 the Court shall satisfy itself by making such inquiry as it thinks fit and:

“shall either declare that the summons has been duly served or order such service as it thinks fit.” I

The report of the peon is very clear in its term to show what transpired and that report was accepted by the Court below as a full compliance with the requirements of the law. This shows that the summons was served in this particular case in accordance with the practice prevailing in the Court below, relating to personal service.

For all these reasons I am of opinion that upon the merits also the contention of the learned Counsel that the summons was not duly served must fail. The result is that the appeal is dismissed with costs.

Foster, J.:— I agree with the findings of fact which have been arrived at, but I am of opinion that the provisions of rules 17 and 19 of Order V of the Civil Procedure Code are not rigid. Where a defendant upon whom a summons has been served retains the copy that is put into his hands and refuses to give an acknowledgment, he makes it impossible for the peon to affix that copy to the house. The alternative would be that in anticipation of such contumacious conduct on the part of the defendant there should be sent out in every case a spare copy for affixing to the house and for complying with the provisions of rule 17. That I do not think was ever intended to be a rule of procedure. The difficulty was, in fact, foreseen when the present Civil Procedure Code was being prepared and it was suggested at that time that a proviso should be added the purport of which was that where the defendant or his agent refuses to sign the acknowledgment and retains the copy of the summons delivered to him, the Court may direct that the summons shall be deemed to have been duly served. That proposal was not, however, adopted, and the only conclusion I can gather is that the high authorities who superintended the drafting of the Code regarded it as unnecessary: and it appears to me to be by no means a strained interpretation of the law to consider that rule 19 enables a Court, in such circumstances as I am referring to, to declare that the summons has been duly served, after holding that this mode of service shall suffice. Having this view, I agree that the appeal should be dismissed.

Appeal dismissed.

Nageshwar Bux Rai v. Biseswar Dayal Singh

Judgment Summary — Jwala Prasad, J. (with Foster, J., concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent / Court Below (as represented in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nageshwar Bux Rai v. Biseswar Dayal Singh

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