the time when and the manner in which the summons was served. Act VIII of 1859, section 56. The 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. Erskin & Co., 3 W. R., Mis., 11; Raj Kishore vs. Bydonath, 12 W. R., 365; Mugh Lall vs. Shib Pershad, I. L. R., 7 Cal., 35, and compare Mahomed Abdul Kadir vs. Amtal Karem, I. L. R., 16 Cal., 161 p. 171. ing-officer. 82. When a summons is returned under section 80, the Examination of serv- Court shall, if the return under that section has not been verified by the affidavit of the serving-officer, and may, if it has been so verified, examine the serving-officer on oath, or cause him to be so examined by another Court, 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. Act VIII of 1859, section 57. This section applies to H. C. and P. S. C. C. The words in the first paragraph from "where" to "may make " have been substituted by Act III of 1888, section 11. 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-Bedhoo vs. Bonomalee, 11 W. R., 496. Declare the Summons Duly Served.-Where a return has been made that the affixing required by section 80 has been made, service is insufficient until confirmed under this section-Nusur Mahomed vs. Kazbai, I. L. R., 10 Bom., 203. 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 Rai vs. Sridhur Sahai, 4 C. L. R., 397, following P. C., 16 W. R., 356 see note under section 83, post. 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 -Shewdyal Singh, vs. Griban Singh, 6 W. R., Cr., 73, 79. Evidence. As a rule the return by a competent Court that the summons has been duly served or substituted service effected raises a presumption in favour of service — Nusur Mahomed vs. Kazbai, I. L. R., 10 Bom., 202. Any other reason the Summons cannot be Served in the Ordinary Way. -In the case of ex-parte Warburg, 24 C. D., 364, the Court of Appeal granted substituted service, although there was no express provision for them in the rules of Court, on evidence that it was impossible to serve the debtor personally, and the same proce dure was adopted by their Lordships of the Privy Council under similar circumstances -Clark vs. Mullick 2 Moore, 263, p. 263. 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-Ex-parte Chatteris, L. R., 10 Ch. App., 229. 83. The service substituted by order of the Court shall be as effectual as if it has been made on the .defendant personally. Effect of substituted service. This section is new. Applies to H. C. and P. 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. Bhoobunessur 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, I. 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, 3 C. D., 512. 84. Whenever service is substituted by order of the When service substituted, time for appearance to be fixed. Court, the Court shall fix such time for the appearance of the defendant as the case. may require. Act VII of 1859, section 58. This section applies to H. C., and P. 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 Ally vs. Syed Hyder, I. L. R., 2 Bom., 449. re Service of summons when defendant sides within jurisdiction of another Court, and has no agent to accept service. 85. If the defendant resides within the jurisdiction of 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 re-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 shall, 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. Act VIII of 1859, section 59. This section applies to H. C. and P. S. C. C. The transmitting Court should not act as a revising Court in regard to service, and where the Court serving the process summons returns that service has been duly effected, it may be presumed that either personal service has been made or substituted service under sections 80 and 82, or section 80, ante. This presumption may be rebutted by the return. Thus where the return was as follows:-"Read bailiff's endorsement on the back of the process, stating that the summons has been affixed to the defendant's house on the 22nd of December 1884 at 9 A.M., and proof of the same having been duly taken by me, it is ordered that the summons be returned." Held insufficient, inasmuch as the Judge had not stated service was duly effected or that the affixing under section 80, had been sanctioned under section 82, ante.-Nusur Mahomed vs. Kazbai, I. L. R., 10 Bom., 202. 86. Whenever any process issued by any Court established beyond the limits of the towns of Calcutta, Madras, Bombay and Rangoon is to be served within any such town, it shall be sent to the Court of Small Causes Service within presidency towns and of process Provincial Rangoon issued by Courts. 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. and P. 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. Act XV of 1869, section 15. This section applies to H. C. and P. 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. See Bland vs. Bland, L. R., 3 P. & D., 233. In India, a life-convict is not civilly dead-Sheonarain Singh vs. Sheobuggun Koor, S. D., N.-W., 1853, p. 759. 88. If the jail in which the defendant is confined is Procedure if jail be not in the district in which the suit is in different district. 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 P. 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. Act VIII of 1859, section 60. This section applies to H. C. and P. 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 Cassim Azim vs. Cassim Mahomed, 2 B. L. R., 59; 10 W. R., 349. 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 show that he is or has recently been residing in the place to which the summons was sent-Sonatum Bukshee vs. Gopal Chunder Shamunto, 15 W. R., 31. A person refusing a registered letter sent by post cannot plead ignorance of its contents-Loolf Ali Meah vs. Pearee 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 in foreign territory through British Resident or Court. 90. If there is a British Resident or Agent, or a Superintendent appointed by the British Government, or a Court established or continued by the authority of the Governor-General in Council, in or for the territory in which the defendant resides; the summons may be sent to such Resident, Agent, Superintendent or Court, by post or otherwise, for the purpose of being served upon the defendant; and, if the Resident, Agent or Superintendent or the Judge of the Court returns the summons with an endorsement under his hand that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be evidence of the service.. This section applies to H. C. and P. S. C. C. It has been substituted by Act VII of 1888, section 12 for section 90, Act XIV of 1882. "Shall be Evidence."-Under the repealed section the endorsement was clusive evidence" of the service. Substitution of letter for summons. 66 con 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. Act VIII of 1859, section 64. This section applies to H. C. and P. S. C. C. letter. 92. When a letter is so substituted for a summons, it Mode of sending such 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 empowered to accept service of summons, in which case the letter may be delivered or sent to such agent. Act VIII of 1859, section 65. This section applies to H. C. and P. S. C. C. A special messenger cannot be sent to serve a civil process in a foreign territory— Kasim 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 otherwise directs. Process to be served at expense of party issuing. The Court-fee leviable for such service shall be levied within a time to be fixed by the Court before the process is issued. Costs of service. Act XXIII of 1864, section 2. 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 and replaced by "within a time" to issue. 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 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-Lala Parsadi vs. Lala Ambika, 3 B. L. R., App. 25; 11 W. R., 290; and see Mohun Mundur vs. Brij Bhookun, 9 W. R., 128. 94. All notices and orders required by this Code to be given to or served on any person shall be in writing, and shall be served in the manner hereinbefore provided for the service of summons. Notices and orders in writing how served. This section applies to H. C. and P. S. C. C. As to service on a person out of British India. See Ghamshamlal vs. Bhansali, 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: |