Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sadasiva Aiyar, J.
Acts
  • Order IX, Rule 13
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sadasiva Aiyar, J.
Acts
  • Order IX, Rule 13
See more information ...
Smart Summary

Structured Summary of the Opinion (Civil Revision Petition)

Factual and Procedural Background

An ex parte decree for specific performance was obtained by the plaintiff against the first defendant (the petitioner in this revision) on 16 August 1910. The claim was founded on an unregistered written agreement under which the defendants agreed to execute a registered rent deed in favour of the plaintiff. The first defendant was not personally served with the summons. His permanent residence was Bezwada and the suit was in the Bezwada Munsif's Court.

The process-server attempted service on 2 July 1910; the first defendant's gumastah stated that the defendant had gone to Tirupathi, and a duplicate summons was affixed to the outer door of the house. The process-server affirmed his return on 5 July 1910. The District Munsif treated the affixture as due service, examined one witness who proved execution of the unregistered agreement, and passed an ex parte decree against the first defendant (and also against the second defendant, though that is not the subject of the revision).

On 23 August 1910 the first defendant petitioned to set aside the ex parte decree, alleging he had gone on a pilgrimage to Benares in May 1910, had returned to Bezwada around 13 August 1910, and only learned of the decree on 22 August 1910. The District Munsif dismissed this petition, disbelieving the affidavit and relying on the process-server's endorsement (which indicated the defendant had gone to Tirupati) and other facts (e.g., the defendant had signed the suit agreement). On appeal the District Judge confirmed the dismissal, holding that the defendant's absence was for an indefinite period and that service by affixture was therefore proper.

The petitioner then filed this Civil Revision Petition (C.R.P. 558) arguing, inter alia, that the process-server's return did not show proper service and that the underlying suit was not maintainable because it rested on an unregistered agreement to lease, relying on later Full Bench authority. The opinion records the dates and some relevant case law developments (including that the Full Bench decision was given on 3 November 1910).

Legal Issues Presented

  1. Whether service by affixture (attachment of summons to the outer door) was "due service" when the process-server's return recorded that the defendant had gone to Tirupathi (i.e., whether the absence was for an indefinite period making affixture proper).
  2. Whether, under Order IX, Rule 13, the ex parte decree should be set aside because the summons was not duly served on the first defendant.
  3. Whether the plaintiff's suit for specific performance founded on an unregistered agreement to lease (a rent-deed agreement) was maintainable in view of contrary Full Bench authority referred to in the opinion.

Arguments of the Parties

Petitioner's Arguments (First Defendant / Appellant)

  • The process-server's return merely stated that the first defendant had gone to Tirupati and did not expressly state that the date of return was unknown or indefinite; therefore the service by affixture was not duly made.
  • Under Order IX, Rule 13, where summons is not duly served an ex parte decree should be set aside.
  • Relied upon several authorities (for example, Abraham Pillai v. Donald Smith and others) to support the contention that affixture in these circumstances was not sufficient.

Respondent's Arguments (including submissions by the Advocate General)

  • The District Munsif and District Judge were correct to treat the affixture as due service because the defendant's absence (reported as a pilgrimage to Tirupati) reasonably indicated an indefinite absence; therefore affixture was proper.
  • It was argued that the first defendant may have known of the suit and the ex parte decree and only afterwards sought to set it aside once he became aware that previous authority (Srinivasacharlu v. Venkataraju) had been doubted and referred to a Full Bench; this was submitted as tending to show knowledge and lack of innocence in permitting the decree.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Srinivasacharlu v. Venkataraju (1907) 17 M.L.J. 218 Held that an unregistered agreement to execute a rent-deed could be used and was admissible as evidence in a suit for specific performance (the law as understood at the time the suit was brought). The opinion records that this decision was the prevailing view in Madras when the suit was brought and that the District Munsif acted on that understanding in admitting the unregistered agreement in evidence.
Narayan(a) Chetty v. Muthia(h) Servai — Full Bench (referenced as (1910) 21 M.L.J. 44; I.L.R. 35 M. 63; also cited as (1911) 21 M.L.J. 978) Full Bench reference/doubt cast on Srinivasacharlu: later authority indicating that no suit could be brought on the basis of an unregistered agreement to lease (Full Bench decision). The opinion notes that the Full Bench reference was probably not known in the mofussil at the time of the original decree; the possibility that the defendant later learned of the Full Bench reference was advanced by the Advocate General as a factual explanation for the petitioner's conduct. The Court recognizes the Full Bench decision but does not set it aside here.
Abraham Pillai v. Donald Smith (cited variously as (1896) I.L.R. 20 M. 324 and (1906) I.L.R. 29 M. 324) Cited in support of the proposition that affixture may be insufficient unless the process-server's return shows the absence to be indefinite. The Court observed that this case (and its broad statements) had been doubted in later cases and that some decisions went too far; it did not treat Abraham Pillai as controlling preferring instead to follow Sankaralinga Mudali.
Sakina / Sakima v. Gauri Sahai (1903) I.L.R. 24 A. 302 Earlier authority relied upon to argue limits on affixture as due service; referenced by the petitioner and defendants in other cited cases. The Court records that some decisions relying on this authority had statements too broadly framed and that later courts had questioned how far those statements should be read.
Visvanathan Chetti v. Arunachellam Chetti (1911) 21 M.L.J. 978 Decision which doubted Abraham Pillai and followed Sankaralinga Mudali; supports the narrower approach that affixture may be sufficient when absence is indefinite. The opinion notes this authority as supportive of the proposition that Sankaralinga Mudali should be preferred; the Court follows Sankaralinga and similar cases.
Sankaralinga Mudali v. Ratnasabapati Mudali (1897) I.L.R. 21 M. 324 Established the principle that where the absence of the defendant is for an indefinite period, service by affixture is sufficient; whether absence is indefinite depends on the circumstances and may be inferred from the process-server's return. The Court expressly follows this decision in preference to other cases and applies its reasoning to hold that the Munsif was justified in treating affixture as due service.
Sitaramasawmi / Sitaramaswami v. Kolandi Patra / Kolandai Patro (1912) 17 C.W.N. 999 Holds that where the defendant had left the jurisdiction, affixing the summons to the outer door could be rightly held to be due service, even absent an express statement that the defendant's date of return was unknown. The Court cites this case as additional support for treating affixture as sufficient when a defendant has left the jurisdiction, and uses it to reinforce the application of Sankaralinga.
Sakharam v. Padmaar (1906) I.L.R. 30 B. 623 One of several authorities relied upon for the proposition that affixture might be insufficient in certain contexts (cited by the defendant in Sitaramaswami). The Court notes it was relied upon in other judgments but prefers the line of authority represented by Sankaralinga and Sitaramaswami.
Wajir Khan v. Nagnawar (1909) 6 A.L.J. 45 Held in that case that interference in revision could be proper in a similar situation. The court expresses doubt about the correctness of Wajir Khan and is reluctant to accept that revision is the appropriate forum to overturn such findings absent patent and extreme hardship.

Court's Reasoning and Analysis

The Court's analysis proceeded by examining (a) the process-server's return, (b) the factual circumstances recorded about the defendant's absence, and (c) the relevant authorities addressing when affixture constitutes due service.

First, the Court rejected the petitioner's argument that the process-server's return must expressly state that the date of the defendant's return was unknown before affixture could be treated as due service. The Court held that the indefiniteness of the absence may be inferred from the circumstances recorded in the return and not only from an express formula.

Second, the Court applied and followed Sankaralinga Mudali v. Ratnasabapati Mudali (1897) I.L.R. 21 M. 324, in which affixture was held sufficient where the absence was for an indefinite period. The Court examined the return in the present case and concluded that the information that the first defendant had gone on pilgrimage to Tirupati (rather than to a nearby village) reasonably led to a presumption of an indefinite absence. The Court further reasoned that if the petitioner's account (that he had gone to Benares a month earlier) were true, the presumption of an indefinite absence would be still stronger.

Third, the Court noted later authority (Sitaramaswami v. Kolandai Patro) which supported the proposition that affixture could be due service when a defendant had left the jurisdiction, even where the process-server did not state expressly that the date of return was unknown. The Court observed that some earlier cases (including wide statements in Sakina/Sakima v. Gauri Sahai and Abraham Pillai) had been doubted, and that some decisions had been too broadly stated.

Finally the Court addressed the appropriate scope of revision under Section 115. It expressed considerable doubt whether an error by the lower courts in treating affixture as due service would constitute acting without jurisdiction or with such material irregularity as to warrant interference in revision. The Court was therefore reluctant to exercise revisionary powers in this matter except in cases of patent and extreme hardship.

In sum: the Court found (a) that the absence could be regarded as indefinite on the facts recorded, (b) that affixture therefore amounted to due service, (c) that the Munsif and District Judge were justified in passing and confirming the ex parte decree, and (d) that revision was not an appropriate remedy to overturn those findings in the absence of patent injustice.

Holding and Implications

HOLDING: The Civil Revision Petition is DISMISSED WITH COSTS.

Direct consequences for the parties:

  • The appeal/revision fails and the ex parte decree passed on 16 August 1910 stands as against the first defendant (subject to any other remedies not addressed in this opinion).
  • The lower courts (the District Munsif and the District Judge) were held to have been justified in treating the affixture of the summons as due service on the facts of this case.

Broader implications and limitations:

  • The Court explicitly followed the line of authority represented by Sankaralinga Mudali and Sitaramaswami in preferring a contextual approach to the question whether absence is "indefinite" (and therefore whether affixture is sufficient).
  • The Court doubted the correctness or breadth of some earlier authorities (e.g., Abraham Pillai, Sakina/Sakima) and expressed doubt about the correctness of Wajir Khan v. Nagnawar as permitting revision in similar cases, indicating judicial caution before disturbing lower-court findings on service via revision under Section 115.
  • The opinion does not purport to create a new, broad precedent; it applies existing authorities to the facts and limits the use of revision in this context. If further or broader implications were to be drawn, they are not articulated beyond the Court's stated preference for Sankaralinga and reluctance to intervene in revision except in extreme cases.

Show full summary ...

    Gontla Venkata Pitchayya v. Sowdagar Mahommad Abdul Kareem Beg Saheb And Others

    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.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Gontla Venkata Pitchayya v. Sowdagar Mahommad Abdul Kareem Beg Saheb And Others
    (Feb 11, 1914)