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Second Appeal No. 172 of 1965, decided on 31st May 1968.

, O. V, r. 15‑Service of summons‑"Member of family"‑"Family" generally connotes parents and their children‑Adult brother‑Whether can be treated as "member of family"‑Doubtful‑Defendant residing at relevant time in lndia‑Summons served on adult brother of defendant residing in Pakistan‑‑Cannot be treated as valid service on de fen dons.

Dur Muhammad v. Moolchand and others A I R 1933 Lah. 797 rel.

, O. V, r. I & O. IX, r. 6‑Service of summons‑Mere knowledge of defendant that suit had been instituted against him‑Would neither dispense with necessity of serving summons on hint nor justify making of ex paste decree against him.

Kassim Ibrahim Salaji v. Johurmull Khamka I L R 43 Cal. 447 and Sudhansu Bhattacharyya v. Chairman, Patna City Municipality A I R 1932 Pat. 150 rel.

A. Rauf Khan for Appellant.

Ahmed Muhammad Qazi for Respondent.

Date of hearing: 27th May 1968.

This second appeal is directed against the judgment of the Civil Judge, Hyderabad, dated 26th November 1963, maintained in appeal by the Additional District Judge by his order dated 4‑3‑1965, whereby a preliminary decree for accounts was made ex parse against the present appellant.

2. The relevant facts as given by the respondent's learned Advocate, Mr. Ahmad Muhammad Kazi, though a little different front the facts stated in the order of the lower Appellate Court are as under.

3. The appellant was in the employment of the Sind University as an officer on Special Duty with charge of extra curricular activities since 1955. On 6th May 1959, he proceeded on leave to India. But in the June of the same year, his services were terminated by the University with immediate effect. In 1962, the appellant filed a suit against the University for recovery of Rs. 39,026.36 on account of the termination of his services, which he alleged to be illegal. This suit was dismissed and a first appeal, being No. 7 of 1964, against the order of dismissal is pending in this Court. The University, in tern, also filed a suit against the appellant fear rendition of accounts for University's moneys in the appellant's hands. According to Mr. Ahmad Muhammad Kazi, this suit was filed in 1963. The summons of this suit were issued to the appellant at the address of his brother, Dr. N. A. G. Khan, who was then in the University's employment. Dr. N. A. G. Khan made appearance in the Civil Judge's Court on 5‑4‑1963 and made an application (Exh. 7) to the effect that the appellant was not staying in Hyderabad but was in India and as the service of summons on the appellant in India will take sometime, the hearing of the matter should be adjourned. The material portion of this application is in these words‑"It will take some time to take the summons to India." Apparently, Dr. N. A. G. Khan was not prepared to accept the service of summons on behalf of his brother and therefore this application was made. The case was therefore adjourned to 25‑4‑1963, when Dr. N. A. G. Khan made another application, Exh. 8, which reads as follows‑‑

"In the above matter it is submitted as under:

That the plaintiff has not given correct address of the defendant who is at present not residing with me and is away in Poona, (India) these days. The undersigned in spite of his attempt has not heard anything from him for some time. I am therefore, returning the summons together with the plaint for necessary service on the following address

Mr. A. G. Pathan, Kothawala's Bungalow, Near Kalu Bai's Mandir, Sholapur Road, Poona (India)."

This application was not accepted by the trial Court which therefore made an order on 26‑4‑1963 to the effect that the suit should proceed ex parte against the appellant.

4. It appears that Dr. N. A. G. Khan had made contact with the appellant in India, and the latter, therefore, forwarded to Dr. N. A. G. Khan. Power‑of‑attorney which was executed on 10‑4‑1963. On the strength of this instrument, Dr. N. A. G. Khan appears to have engaged, on 11‑5‑1963, an Advocate, Mr. Abdul Hamid Siddiqui, on his brother's behalf. Dr. N. A. G. Khan then took proceedings to have the ex parte order made on 26‑4‑1963, against his brother, the appellant, set aside. But Dr. N. A. G. Khan was not recognized by the trial Court as duly constituted attorney of the appellant, neither competent to wake appearance in the Court, nor to engage an Advocate on his brother's behalf, on the ground, as stated by Mr. Ahmad Muhammad Kazi before me, that the power‑of‑attorney was neither authenticated by the High Commissioner for Pakistan in India, nor was it stamped with the requisite stamp duty under section IR of the Stamp Act, 199. The proceedings in the suit, therefore, continued ex parse against the appellant and in this way the ex parse preliminary decree for accounts was made against him on 26‑11‑1963. The appeal against this decree was dismissed by the Additional District Judge at Hyderabad by the order referred to above. The main question on which the argu ments in the case were addressed before me is whether the service of summons on Dr. N. A. G. H. Khan, the appellant's brother, should be treated as good service on the appellant himself under Order V, rule 15, C. P. C. According to this rule "where in any suit the defendant cannot be found and has no agent empowered to accept service on his behalf, service may be made on any adult member of the family of the defendant who is residing with him" The explanation to this rule states that a servant shall not be treated as a member of the family. Before service of summons ' can be treated as good and valid service under Rule 15 of Order V of the Code of Civil Procedure, two conditions shave to be satisfied, that is:‑-

(i) The defendant cannot be found and has no agent empowered to accept service of summons on his behalf.

(ii) Service in such a case should be effected on an adult male member of the family of the defendant who is residing with him.

5. In my opinion, neither of these two conditions existed in the suit pending against the appellant before the trial Court. It cannot be said that the defendant, namely, the appellant before me, could not be found at all. The two applications made by Dr. N. A G. Khan, Exh. 7 and Exh. 8, would show that Dr. Khan had in fact requested the trial Court to send the summons to the appellant in India, and in the second application, Exh. 8, moved on 25‑4‑1963, he bad even given the appellant's address in India, so that the summons could be sent to the appellant by registered post. Neither Mr. Abdur Rauf Khan, the appellant's learned Advocate, nor Mr. Ahmad Muhammad Kazi, the learned Advocate for the Sind University, were able to satisfy me whether the trial Court sent summons to the appellant at his address in India which was supplied by Dr. N. A. G. Khan. But the way the suit proceeded in the Court of the first instance, leaves the impression that summons were not in fact sent to the appellant in India though his address was available to the Court on 25‑4‑1963.

6. As regards the second condition, it contains two essential elements. Firstly, the adult male on whom summons are served should be a member of the defendant's family and, secondly, this adult should be residing with the defendant. It is doubtful whether one adult brother can be treated as a member of the family of another adult brother, because the expression "family" generally connotes parents and their children and not adult males who are brothers. If it be assumed that Dr. N. A. G. Khan should be treated as member of the appellant's family, then a further requirement under Order V rule 15, C. P. C. is that Dr. N. A. G. Khan should have been residing at the relevant time with the appellant. Service of summons on a member of the family who is not residing with the defendant, cannot be treated as valid service on the defendant. Reference in this connection may be made to, the decision in Dur Muhammad v. Moodchand and others (A I R 1933 Lah. 797) in which it was held that service of summons on the son who was not residing with his father, could not be treated as valid service on the father himself. In the instant case, I do not find any sufficient material on the record to warrant the conclusion that the appellant and Dr. N. A. G. Khan were residing together at Hyderabad. On the other hand, the two applications made by Dr. Khan to the trial Court, Exh. 7 and Exh. 8, made it abundantly clear that the appellant was not residing with Dr. Khan at the relevant time. The service of summons on Dr. Khan therefore cannot be treated as service on the appellant himself. In this view of the matter, there was no justification for the trial Court to proceed ex parte against the appellant and to make a preliminary decree for accounts in his absence.

7. Mr. Ahmad Muhammad Kazi, also contended that the appellant should be deemed to have had knowledge of the suit instituted against him by the Sind University, and since he failed to take steps for his representation before the trial Court, the ex pane preliminary decree was validly made against him. In this connection, the learned Advocate referred to Exh. 13, which is the Eakalatnuma filed by Abdul Hamid Siddiqui and is signed by Dr. N. A. G. Khan, presumably as the appellant's attorney. Against the column "received by us on . . . ." the date given is 11‑5‑1963, but the figure "5" seems to have been over written on the figure "4'". It is therefore argued that Dr. N. A. G. Khan had received the power‑of‑attorney from the appellant who was then in India on 11‑4‑1963. In my opinion, however, the figure "4" was apparently written by mistake, because in the preceding part of the vakalatnama, relating to its execution by Dr. N. A. G. Khan, the month of May is clearly written in words. A further difficulty in accepting Mr. Kazi's argument is that the power‑of- attorney was executed at Poona in India on 10‑4‑1963, and therefore could not have been received in the City of Hyderabad in Pakistan, on 11th April 1963. From this fact, I have no hesitation to hold that the power‑of‑attorney was received by Dr. N. A. G. Khan after 26th April 1963, when orders for ex parte proceedings had already been made against the appellant by the trial Court. Even if I assume that the appellant had become aware in the first part of April 1963, of the institution of the respondents' suit against him at Hyderabad, this knowledge would neither dispense with proper service of summons upon the defendants, nor justify the making of ex parse preliminary decree against him. I would refer in this connection to a Full Bench decision of the High Court of Calcutta, Kassim Ibrahim Saleji v. Johurmull Khamka (I L R 43 Cal. 43 9) in which it was held that knowledge of the institution of the suit, derived by the defendant aliunde is not sufficient to enable the trial Court to proceed with the suit in the absence of proper service of summons on the defendant. Another decision to be taken note of is that of the High Court of Patna in Sudhaasu Bhattacharyya v. Chairman, Patna City Municipality (A I R 1932 Pat. 150) where it was held that the mere fact that the defendant knew that the suit had been instituted against him would eat dispense with the necessity of proper service of summons on him.

8. The result of the foregoing discussion is that there was no proper service of summons of the suit on the appellant, and hence the appellant should not have been proceeded with ex parts in the proceedings before the trial Court. I would therefore set aside the judgment of the trial Court dated 7‑11‑1963 and the preliminary decree against the appellant, and the order in appeal of the Additional District Judge, dated 4‑3‑1965. The case will go back to the Court of first instance which will proceed with the suit of the respondent after effecting due notice on the parties. In the circumstances of the case I make no orders as to costs.

A.E Appeal accepted.

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