Endorsement of time and manner of service.

81. The serving-officer shall, in all cases in which the summons has been served under section 79, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served.

This section applies to H. C. and M. S. C. C.

The return of the nazir is not sufficient proof of service-Okhoy Chunder Dutt vs. Erskine & Co., 3 W. R., Mis., 11; Raj Kishore Dutt vs. Bydonath Shaha, 12 W. R., 365.

Examination of serving

officer.

82. When a summons is returned under section 80, the Court shall examine the servingofficer on oath touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

Substituted service.

Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding the service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided, or in such other manner as the Court thinks fit.

This section applies to H. C. and M. S. C. C.

The procedure laid down in this section and section 80 has been applied to the service of an appeal notice on the respondent, where the appellant was unable to find the respondent at the place which he described as his place of residence when he brought the suit-Bedroo Koolanee vs. Bonomalee Gosain, 11 W. R., 496.

Court is satisfied.-No order for substituted service should issue until the Court should record that it is satisfied, and the grounds on which it is satisfied, that the defendant is keeping out of the way in order to avoid service-Rama Roy vs. Sridhar Pershad Narain Sahai, 5 Cal., 397, following P. C., 19 W. R., 356; and that the summons cannot be served in the ordin: ry way-Bishonath Sircar, Petitioner, 3 W. R., Cr. R., 63; merely recording that the defendant cannot be found., instead of that the Court is satisfied he was keeping out of the way for the purpose of avoiding service, would not be sufficient-shew Doyal Singh vs. Gulam Singh, 6. W. R., Cr., 73, 79.

Last resided-The Articles of an Association often provide that service on a member at his registered address shall be good service. This convention cannot override the law and make service of legal proceedings at that address good unless it is also his last residence-Exparte Chalen, L. R., 10 Ch. App., 229.

83. The service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Effect of substituted

service.

This section applies to H. C. and M. S. C. C.

Substituted service is as good as if the defendant had been served in person. Substituted service having been effected on a defendant, he applied to set aside the decree on the ground of having no notice, and that he had a good defence on the merits; it was held that it could not be set aside-Kessur Chand vs. Bhoobuneisur Chunder, Bourke 27.

The object of such service is to enable plaintiffs to have relief more promptly, not to relieve them of any difficulty in pleading. Plaintiff, treating a colonial government as a corporation, sued it as "The Government of New Zealand," and attempted to proceed upon substituted service on the solicitor for the colony, although the latter stated he had no authority to appear. Held, that substituted service only applied to cases in which there could be (if there were no difficulties in the way) personal service, and was never intended to be allowed where personal service could not be effected because the plaintiff did not know how to describe the parties he sought to sue-Sloman vs. Government of New Zealand, 1 C. P. D., 563.

Endorsement.-An endorsement is required only where personal service has been made, or the summons returned under section 80; no endorsement is necessary, apparently, in cases of substituted service-Dymond vs. Croft, 5 Ch. D., 512.

84.

Whenever service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

When service is substituted time for appearance to be fixed.

This section applies to H. C. and M. S. C. C.

A sufficient time ought to be given for notice of the substituted service to reach the defendant wherever he may be-Mirza Ali Bebanee vs. Syed Hyder Hoosein, I. L. R., 2 Bom., 449.

85. If the defendant resides within the jurisdiction of

Service of summons

when

defendant resides

within jurisdiction of an. other Court and has no agent to accept service.

any Court other than the Court in which the suit is instituted, and has no agent resident within the local limits of the jurisdiction of the latter Court empowered to accept the service of the summons, such Court shall send the summons, either by one of its officers or by post, to any Court, not being a High Court, having jurisdiction at the place where the defendant resides, by which it can be conveniently served, and shall fix such time for the appearance of the defendant as the case may require,

The Court to which the summons is sent shail, upon receipt thereof, proceed as if it had been issued by such Court, and shall then return the summons to the Court from which it originally issued, together with the record (if any) made under this paragraph.

This section applies to H. C. and M. S. C. C.

See note on section 72.

86. Whenever any process issued by any Court established beyond the limits of the towns of

Service within presiden

process issued by Provincial Courts.

ey towns and Rangoon of Calcutta, Madras, Bombay and Rangoon is to be served within any such town, it shall be sent to the Court of Small Causes, within whose jurisdiction the process is to be served,

and such Court of Small Causes shall deal with such process in the same manner as if the process had been issued by itself,

and shall then return the process to the Court from which it issued.

This section applies to H. C., P. S. C. C. and M. S. C. C.

Service on defendant in jail.

87. If the defendant be in jail, the summons shall be delivered to the officer in charge of the jail in which the defendant is confined, and such officer shall cause the summons to be served upon the defendant.

The summons shall be returned to the Court from which it issued, with a statement of the service endorsed thereon and signed by the officer in charge of the jail and by the defendant.

This section applies to H. C. and M. S. C. C.

Wilson, J., held that the endorsement under this section, is evidence of the service of summons it ranks higher than a nazir's return. But see Bland vs. Bland, L. R., 3 P. and D., 233.

In India a life-convict is not civilly dead-Sheonarain Singh vs. Sheobuggun Koer, S., D., N. W., 1853, p. 759.

Procedure if jail be in a different district.

88. If the jail in which the defendant is confined is not in the district in which the suit is instituted, the summons may be sent by post or otherwise to the officer in charge of such jail, and such officer shall cause the summons to be served upon the defendant, and shall return the summons to the Court from which it issued, with a statement of the service endorsed thereon, and signed as provided in section 87.

This section applies to H. C. and M. S. C. C.

Service when defendant resides out of British India and has no agent to accept service.

89. If the defendant resides out of British India, and has no agent in British India empowered to accept the service, the summons shall be addressed to the defendant at the place where he is residing, and forwarded to him by post if there be postal communication between such place and the place where the Court is situate.

This section applies to H. C. and M. S. C. C.

It was held under Act VIII, 1859, that a summons could not be sent by post to any place for which letters are not registered by a Post Office; but the decision there turned on the interpretation to be put on section 66, Act VIII, of 1859, which has been excluded from this Code, and the words in the text, "if there be postal communication between such place and the place where Court is situate," have been added. See Kasim Azim Duplay vs. Kasim Mahomed Baracha, 2 Ben., 59; 10 W. R., 319. But see section 95, infra.

In practice the summons is forwarded under a registered cover, and if the party does not appear, a verified statement should be put in to shew that he is or has recently been residing in the place to which the summons was sent - Sonatun Bukshee vs. Gopal Chunder Shamunto, 15 W. R., 31. A person refusing a registered letter sent by post cannot plead ignorance of its contents-Loot Ali Meah vs. Pearce Mohun Roy, 16 W. R., 223.

Summonses and processes for service in the Terai should be forwarded direct to the Subah of the Terai and not to Katmandhu-9 C. L. (N. W)., 1871.

Service through British Resident or Agent of Government.

90. If there be a British Resident or Agent of Government in or for the territory in which the defendant resides, the summons may be sent to such Resident or Agent, by post or otherwise, for the purpose of being served upon the defendant; and if the Resident or Agent returns the summons with an endorsement under his hand that the summons has been served on the defendant in manner herein before directed, such endorsement shall be conclusive evidence of the service.

This section applies to H. C. and M. S. C. C.

Substitution of letter for

summons

91. The Court may, notwithstanding anything hereinbefore contained, substitute for the summons a letter signed by the Judge or such officer as he appoints in this behalf, when the defendant is, in the opinion of the Court, of a rank which entitles him to such mark of consideration.

The letter shall contain all the particulars required to be stated in the summons, and, subject to the provisions contained in section 92, shall be treated in all respects as a

summons.

letter.

This section applies to H. C. and M. S. C. C.

92. When a letter is so substituted for a summons, Mode of sending such it may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; unless the defendant has an agent empowed to accept service of summons, in which case the letter may be delivered or sent to such agent.

This section applies to H. C. and M. S. C. C.

A special messenger cannot be sent to serve civil process in a foreign territory— Kusim Azim Duplay vs. Kasim Mahomed Baracha, 2 B. L. R., 59; 10 W. R., 349.

Service of Process.

93. Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court

Process to be served at expense of party issuing.

otherwise directs.

The Court-fee leviable for such service shall be levied within a time to be fixed by the Court

Costs of service,

before the process is issued.

This section applies to H. C. and M. S. C. C.

The words" within a period to be fixed by the Court issuing this process" have been omitted. Under Act XXIII of 1861, the Courts should, on receipt and registration of a plaint or memorandum of appeal, and when fixing the date for the hearing of the case, also fix the period within which the costs of the service of the summons or notice on defendant or respondent should be paid. A reasonable period should be fixed, and if the necessary the Courts should inflict the penalty prescribed by section 5, on failure to deposit the cost-10 Civ. L. (N. W.), 1868. Where no period was fixed, and the processes were not served for four months, and the Court dismissed the suit because the plaintiff produced no evidence in support of his claim, the case was remanded-Lalla Prasaud Lall vs. Lalla Umbica Prasaud, 3 B. L. R., App., 25; 11 W. R., 290. Under the present law there is no necessity to fix a period, and the practice is the same as under section 23, Act VIII, 1859. And if a party has ample opportunity to deposit fees, and does not do so, his suit may be dismissed under section 97, infra.

94. All notices and orders required by this Code to be given to or served on any person

Notices and orders in writing how served,

shall be in writing, and shall be served in the manner hereinbefore provided for the service of sum

mons.

This section applies to H. C. and M. S. C. C.

As to attaching a debt due by a person out of British India, see-Gramshamlal vs. Bhansalal, I. L. R., 5 Bom., 249.

Postage.

Postage.

95. Postage, where chargeable on any notice, summons or letter issued under this Code and forwarded by post, and the fee for registering the same, shall be paid within a time to be fixed by the Court before the communication is forwarded:

Provided that the Local Government, with the previous sanction of the Governor General in Council, may remit such postage, or fee, or both, or may prescribe a scale of court-fees to be levied in lieu thereof.

This section applies to H. C. and M. S. C. C.

CHAPTER VII.

OF THE APPEARANCE OF THE PARTIES AND CONSEQUENCE OF NON-APPEARANCE.

Parties to appear on day fixed in summons for defendant te appear and

96. On the day fixed in the summons for the defendants to appear and answer, the parties shall-be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard, unless the hearing be adjourned to a future day fixed by the Court.

answer.

This section applies to H. C. and M. S. C. C.

Plaintiffs must be represented by the same pleader or set of pleaders, and can not be generally represented by different pleaders-Jankibai vs. "Atmaram Baturat, 8 Bom 241. See note under section 179, post.

In person or by their respective pleaders.-See note on ex-parte, under section 100.