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Civil Rule No. 336 of 1958, decided on 16th July, 1959.

O. V, rr. 15 & 17 --Summons put on door of defendant's house after defendant's office head had refused to accept same‑Defendant, held, not duly served.

Profulla Kumar De for Petitioner.

T. H. Khan for M. Fazlul Huq for the Opposite‑Party.

This Rule is directed against the order of the Small Cause Courts Judge (Subordinate Judge, 3rd Court) Dacca in Miscel laneous Case No. 44 of 1957 rejecting an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside an ex parte decree passed in Small Cause Courts Suit No. 104 of 1956 on 21‑12‑56.

2. The case of the petitioner is that no summons was served on him and it was fraudulently suppressed by the plaintiff‑decree -holder in collusion with the process‑server and a false return was submitted and that the persons named in the return of service are men of the decree‑holder opposite‑party. The petitioner also characterises the claim in the suit as false and denied that any rent was due from him.

3. The application was opposed by the decree‑holder opposite‑party who denied all the allegations of the petitioner and asserted that the summons was duly served and there was no suppression of summons.

4. Trial Court rejected the application relying on Exh. A, the service return, which shows that the summons was tendered on the petitioner on 18‑11‑56 and on the evidence of the opposite- party's witnesses No. 2 and 3. The petitioner filed an appeal against the order of the Small Cause Court Judge rejecting the application for setting aside the ex parte decree.

5. The learned Subordinate Judge dismissed the appeal on a preliminary objection that no appeal lies against the decision of the Small Cause Court Judge in an application under Order IX, rule 13 of the Code of Civil Procedure. Hence this rule by the petitioner against the judgment and order of the Small Cause Court Judge.

6. It is contended by Mr. De, learned Advocate for the petitioner, that the learned Judge is absolutely wrong in holding that the summons was served on the petitioner.

7. I think this contention of Mr. De is of substance. Order V, Rule 12 of the Code of Civil Procedure provides that wherever it is practicable, service shall be made on the defendant in person, unless he was an agent empowered to accept service, in which case service on such agent shall be sufficient.

Rule 15 as amended in 1928 provides :

"Where in any suit the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time, then unless he has an agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him."

Order V, rule 17 provides

"Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door of the house of the defendant."

In this case the report of the process‑server in the service return Exh. A shows that the service was tendered to the defendant -petitioner but as he refused to accept the same on granting receipt it was served by hanging at the outer door of his shop but one of the witnesses, namely, O. P. W. No. 3 Lai Mia, whose name also appeared in the service return, states that he saw the peon tender ing the paper to an officer of the petitioner and he did not remember if the petitioner was then there and that as it was not accepted the peon hung it up on the door. If this witness is believed then there is no doubt that the provisions of rule 15 and rule 17 of Order V of the Code of Civil Procedure have not been complied with and the peon has no right to effect the service by hanging on the outer door of the shop of the petitioner and it cannot be taken as due service of summons on the defendant of the suit. Further it appears from the service return that Lal Mia signed as mokabila witness No. 2 but from the remark of the process‑server it appears that mokabila witness No. 2 has not given his signature.

8. Now coming to the evidence of O. P. W. 3, Wazed Ali, he says that one day a process‑server of the Court went to him and enquired of him about the shop of Matiar Rahman. He pointed out the shop to him. He is not a witness of the service return of summons. O. P. W. 1, who is the opposite‑party himself says that he learnt afterwards that the summons was duly served. His evidence is hearsay and is not admissible in evidence, Actually on these sort of evidence the learned Small Cause Court Judge held that service was duly served.

9. I am unable to accept this, finding of the Small Cause Court Judge and constrained to find that service was fraudulently suppressed and the names of two mokabila witnesses Abdur Rashid and Lal Mia were subsequently introduced in the service return by different hand. Even the service return does not show that the process‑server effected service in the presence of the mokabila witnesses.

10. The result, therfore, is that this Rule is made absolute with costs and the order of the Small Cause Court Judge, and the ex parte decree are set aside and the learned Judge is directed to hear the suit according to law.

K. M. A.

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