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MEERALEVVAI v. SEENITHAMBY
NLR48V140
1947 Present: Soertsz
S.P.J.
MEERALEVVAI, Petitioner and SEENITHAMBY, Respondent.
518-Application for restitutio-in-integrum in C. R.
Batticaloa, 1,014.
Civil procedure-Defendant in
jail-how summons should be served on him-Substituted service of summons on last
known place of above- Meaning of word "abode"-Civil Procedure Code, ss. 68, 839.
The defendant was in jail at the time of the institution of the action. The
plaintiff sought to serve summons through the officer in charge of the Mahara
Jail, but the report was that the defendant was not in that jail. Later, the
plaintiff asked for substituted service of summons on the last known place of
abode of the defendant. This was allowed, but the summons was affixed on some
part of the house in which the defendant lived when he was free.
Held, that the substituted service was bad (1) because in a case like
this where the plaintiff himself knows that the defendant is prison he must
ascertain the particular prison in which the defendant is confined and serve
summons on him in the manner indicated by section 68 of the Civil Procedure
Code, (2) because the summons was not affixed to the last known place of abode
as was directed, for according to the plaintiff himself the last known place of
abode was the Mahara Jail; the word "abode" is a word of wide connotation and
includes both places of temporary stay and of habitual residence.
APPLICATION
for restitutio in integrum in respect of
a case instituted in the Court of Requests, Batticaloa.
C. T. Olegasegarem, for the defendant, petitioner.
C. Renganathan, for the plaintiff, respondent.
Cur. adv. vult.
February 17, 1947. SOERTSZ
S.P.J.-
It is unfortunate that this action which was instituted nearly seven years ago
and in which decree was entered in July, 1941, has to be reopened, but there is
no alternative.
It is common ground that when this action was instituted, the defendant was in
jail and continued to be there till decree was entered against him and the sale
in execution took place. Section 68 of the Civil Procedure Code which is made
applicable to cases in Courts of Requests by section 808 of the C. P. C.
Provides that-
"If the defendant be in jail, the summons shall be divided by the Fiscal to the
officer in charge of the jail in which the defendant in confined, and such
officer shall cause the summons to be served upon the defendant. The summons
shall be returned through the Fiscal to the Court from which it is issued with a
statement of the service endorsed thereon, and signed by the officer in charge
of the jail."
In this case, the plaintiff sought to serve summons through the officer in
charge of the Mahara jail, but the report was that the defendant was not in that
jail. The defendant was required to give further particulars to enable the
Fiscal to have summons served. He, thereupon, asked for summons to be served
through the officer in charge of the Kandy, Mahara, Welikada and Jaffna Prisons.
He was directed to give any one correct address. He did not do that but he
submitted an affidavit and asked for substituted service by affixing the summons
on the last known place of abode. This was allowed and the summons was affixed
on some part of the house in which the defendant lived when he was free.
In my opinion this substituted service was bad, firstly because in a case like
this where the plaintiff himself knows that the defendant is in prison he must
ascertain the particulars prison in which the defendant is confined and serve
summons on him in the manner indicated by section 68 of the Code. If the
plaintiff is diligent, this is an easily ascertainable fact; secondly, the
substituted service was bad in that it was not affixed to the last know place of
abode as directed, for according to the plaintiff himself to the last know place
of abode was the Mahara jail. The word "abode" is a word of wide connotation. It
includes both places of
