6. The nature of the proof of service which the Court ought to require in each case, according as it falls under one or another of the various sections of the Civil Procedure Code relating to service of summons on defendants, may be shortly stated as follows:When the summons or notice is served on the defendant or respondent personally, the service and the signature of the defendant on the back of the summons or copy should be proved by affidavit or solemn declaration, recorded in writing, of the person who actually effected the service; and the identity of the person served with the party to whom the process is addressed should be proved by the affidavit or solemn declaration of some one personally acquainted with the party to be served. (2) If the service be made under sec. 75 on an agent, it should be proved that this person was empowered to accept service, by reason of his being one of the class of recognized agents described in secs. 37 or 41. The party causing the service to be effected must give proof to this effect. It is a matter of which, ordinarily speaking, the serving officer would have no knowledge. (3.) If the service be made under sec. 78, it should be provel by the affidavit or solemn declaration of the officer effecting the service, and, if necessary, of some other person or persons acquainted with the facts, that the defendant or respondent could not be found, and had no agent empowered to accept the service; and that the person to whom the process was delivered was an adult male member of his family, and was actually residing with him at the time of such service. (4.) If the service be made under sec. 80, it should in like manner be proved that the defendant or respondent could not be found, and that there was no agent empowered to accept the service, or any other person on whom the service could be made, and that the defendant or respondent was actually dwelling (the facts leading to this inference should be stated) in the house, on the outer door of which a copy of the process was fixed, at the time when it was so fixed. (5.) If the service be made under sec. 82, it should in like manner be proved that the house upon the door of which a copy of the process was fixed was the house in which the defendant or respondent last resided, and that the service was made in all respects in conformity with the order for substituted service, which should accompany the process. N. B.-It should be stated how long, and until when, he resided in the house, and what had become of him. (6.) If the service be made under sec. 77, it should be proved in like manner that the summons or notice could not be served on the defendant or respondent in person, and that he had no agent empowered to accept the service, and that the person to whom the process was delivered was an agent of the defendant or respondent, in charge of the land or other immoveable property forming the subject-matter of the suit. (7.) If the service be made under sec. 436, it may be proved that the summons or notice was left at the registered office of the company, or was delivered to any director secretary, or other principal officer. (8.) If the summons orfnotice ordered be declined by the defendant, or his agent, or a male member of his family, besides the proof required as to identity, &c., as stated above, it should be proved that the party was informed that the document tendered was a summons or notice, and that he was made acquainted with the nature and contents thereof. (9.) The proof which is above described as requisite, according to the case, may be either by the affidavit or verified statement of the person by whom the service was effected, and of any person who may have accompanied the serving officer for the purpose of identifying the party to whom the process was addressed, or otherwise directing or assisting the serving officer, or, if deemed necessary, by the examination in Court as witnesses of such persons as the Court may think fit to examine. (10.) When the summons which has been served is the summons of another Court, transmitted to the serving Court for the purpose of service only, then, upon service being effected, this latter Court should retransmit the summons to the Court by which it was issued, together with the Nazir's return and the affidavits, verified statements or depositions of the serving officer and the witness relative to the facts of the service. 7. The foregoing directions apply to, and must be followed in the cases of, all notices and judicial processes which by sec. 163 are required to be served in the manner directed for the service of summons upon a defendant to appear and answer. U. C. O. C. H. C. 25, 26, 27, 28. (b) The N.-W. P. High Court in their C. O. 23 of 1859, suggest as follows: The fixing of a suitable day is a matter which will require considerable care and attention, especially if the parties are to appear in person, for it is very desirable that postponements should took place as seldom as possible, and that, as a general rule, causes should always be heard upon the day fixed. The date specified in the summons *Ss. 38,40,41. ts. 17.n. (e). Provided that, if the defendants are partners, and the suit relates to a partnership transaction, or to an actionable wrong in respect of which relief is claimable from the firm, the service may be made, unless the Court directs otherwise, either (a) on one defendant for himself and for the other defendants, or (b) on any person having the management of the business of the partnership at the principal place, within the local limits of the Court's ordinary original civil jurisdiction, of such business. M. 75. (49) Whenever it may be practicable, the Service to be on defendant in person, when practicable, or on his agent. agent shall be sufficient. Service on agent whom defendant carries on business. M. 76. In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons issues, service on any manager or agent who, at the time of service, personally carries on such+business or work for such person within such limits, shall be deemed good service. For the purpose of this section, the master of a ship is the agent of his owner or charterer. 77. (61) In a suit to obtain relief respecting, or comService on agent in charge, pensation for wrong to, immoveSee n. p. 61. in suits for immoveable pro- ablet (h) property, if the service perty. cannot be made on the defendant in person, and the defendant have no agent* empowered to accept the service, it may be made on any agent of the defendant in charge of the property. M. 78. (53) If in any suit the defendant cannot be When service may be on found, and if he haveno agent* emmale member of defendant's powered to accept the service of the family. summons on his behalf, the service may be made on any adult male member of the family of the defendant who is residing with him. Explanation. A servant is not a member of the family within the meaning of this section. Person served to sign acknowledgment. M. 79. (54) When the serving officer delivers or ten ders the copy of the summons to the defendant personally, or to an agent* or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. M. 80. (54) If the defendant or other person refuse Procedure when defend- to sign the acknowledgment or to ant refuses to accept service; receive the copy of the summons, also ought in all cases to be so far distant as to afford the defendant ample time to prepare his defence. (See also Cen. Pro. C. O. I 135, 139. The summonses, whether served or not, should be returned by the date fixed for hearing). No general rule can be laid down on this subject; but the Court issuing the summons ought particularly to take into consideration the nature of the case, whether simple or complicated, slight or important, and the state of its own files. The rule prescribed by the High Court, Madras, for procedure in ordinary original civil suits will be found at p. 272 of the Fort St. George Gazette for 1876. In Jabalpur, Sagar, Damoh, Seoni, Mandala, Hoshangabad, Narsingpur, Betul, Chindwara and Balaghat, processes should be written in Hindi. Cen. Pro. II., 94, 95. All processes are to be prepared in the Courts, and issued through the Nazir promptly and by proper means, under the supervision of the Clerk of the Court, I, p. 210. The fees are to be taken under a standing rule of the Court, and not by special order in each case, I. p. 198. (a) The plaintiff must next deposit with the nazir the fees necessary for the summons according to the table of fees suspended in the Court-room. Till he does so no process will issue. N.-W. P. C. O. II, p. 67. Time within which they should be deposited should be fixed when fixing the date for hearing. Ib. C. I. 10 of 1868. The plaintiff cannot be required to take out a summons within a fixed time. His delay is punished by sec. 97. Where a plaintiff presented a plaint to the District Court, the subordinate Judge's Court being temporarily closed, held that the District Court could not be considered a Court of first instance, competent to receive a plaint. Ramaya Elapa, Bom. H. C. X., 495. (b) Calcutta C. O. 4, 1876, adopted by N.-W. P. C. O. 5 of 1876, observes that It frequently happens, in the case of processes issued in one district for service or execution in another, that the seals and signatures on the process are illegible, whereby great inconvenience and delay are caused. In every process therefore, and every sentence or order (of whatever description) issued by a judicial officer, for whatever purpose it may be issued or made, the name of the district and of the Court from which the same is issued, and also the name and powers of the officer, shall be clearly set out in such manner that it may be easily read, Generally in Generally in all cases all judi cial officers shall take care to sign their names distinctly and legibly, (c) The simple appearance of the pleader, without his instructions to answer, is not sufficient. Case may be heard, and judgment will be held to be ex parte. Brimcharya, &c., v. Fakirappa, Bom, H. O, A. C. IV., 206. Certain women and persons of rank may claim exemption from personal appearance in Court, secs. 640, 641. Public officers and military men are also provided for in sec. 423 and chap. XXXII. In Rammohan Mukarji v. Raja Narsing Deb, it was held that natives of rank who refuse, on account of their privilege, to come forward and give evidence, must take the consequences if their witnesses are not believed. S. F. B., 57. (d) For the consequence of nonappearance see sec. 107. The form of the summons will be found in Sch. IV. See. also note (e) sec. 68. Parties to a suit are protected from arrest eundo, morando et redeundo. sec. 642. (e) The forms of summons different, see Sch. IV. are It would be just as well, though not necessary, to give this information in writing to plaintiff also, to prevent subsequent pretence of *Ss. 38, 40, 41. Or cannot be found. †Act X. 1873. See n. p. 63. (55) or if the serving officer cannot find the defendant, and there is no agent* empowered to accept the service of the summons on his behalf, nor any other person on whom the service can be made, the serving officer shall affix a copy of the summons on the outer door of the house in which the defendant ordinarily resides, (i) and then return the original to the Court from which it issued, with an endorsement thereon stating that he has so affixed the copy, and the circumstances under which he did so. M. 81. (56) The Endorsement of time and manner of service, serving officer shall, in all cases in which the summons has been served under section 79, endorse or cause to be endorsed on the original summons the time when and the manner in which the summons was served. Examination of serving officer. M. 82. When a summons is returned under section 80, the Court shall examine the serving officer 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, (57) 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.‡(j) 83. (57) The service substituted by order of the Court be as effectual as if it had been made on the defendant personally. Effect of substituted ser vice, M. 84. (58) 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. Service of summons when defendant resides within M. 85. (59) If the defendant resides within the jurisdiction (k) of any Court other than the Court in which the suit is instituted, and has no agent resident within the local limits of the juris diction of the latter Court empowered to accept the service of the summons, such Court shall jurisdiction of another Court service. ignorance or real hardship arising from a plaintiff not understanding the meaning of the order passed. The Panjab Chief Court points out that the provisions of this section are much neglected, especially in Small Cause Courts (where the rule should be issue for final disposal at first hearing) at a result of much unnecessary trouble to parties and witneses. The Court must be guided entirely by the nature of the suit, and the probability of the defendant disputing it on grounds which will require the production of much evidence or involve much contention.* Where the case appears simple, and it seems probable that a correct judgment can be formed at the first hearing from the examination of parties or their agents, and such evidence, oral and documentary, as they can bring with them, the summons will of course be for final disposal at first hearing. *N.B.-This is enjoined in the Central Provinces also, where summonses, as a rule, should be for final disposal, as the cases are mostly simple, (C. O., I. p. 29) especially in actions for simple debt. ib. 135. Summonses for final disposal should be printed in the vernacular on coloured paper, as this will tend to impress the distinction on the minds of the people and the officers of the Court. (Panj. C. O. pp. 17-19). (f) The date for first hearing should be fixed at an interval of not less than seven days from the date of the issue of the summons, unless there be special reasons for fixing an earlier date; such reasons should always appear on the record, noted by the Judge. Officers when on tour should be careful that the time and exact place of hearing is communicated properly to parties, either by an order in Court given in their presence, or by these facts being distinctly noted in the summons or notice issued; a note of such order or issue of notice should always be made in the record. To enable a superior Court to judge whether these orders have been carried out, all officers, when away from head-quarters, should be careful to enter distinctly in the proceedings the place and date of hearing. When an apparently valid plea is put in by cultivators in the harvest season, that they cannot attend Court on account of their agricultural avocations, the hearing of the case should be postponed for a reasonable period (Punj C. O. pp. 19, 20. (g) For summonses to Government servants, &c., see chaps. XXVII to XXIX. In issuing processes upon persons connected with the Railway, Electric Telegraph, and other public departments, a reasonable time should be given, in order that the head of the department (to whom notice should always be given if possible) may make suitable arrangements for the conduct of their subordinate's duties during their absence. All such persons, however, must attend when summoned; inability to attend without permission from the head of the department cannot be accepted as a sufficient excuse. N.-W.P. C. O. 1856-1866, p. 251, and Cen. Prov. C. O. 40 of 1863. For a list of officers through whom summonses on E. I. R. servants should be sent, see N.-W. P. C. O. 1866-1875, pp. 35-42. (h) A recollection of the definition given in the General Clauses Act I. 1868, and repeated in then otes to sec. 16, will remove all doubts as to this applying or not to suits interests in such relating to property. (i) In Anantha Narayan v. Peoijana Kone it was held that to make this mode of service good servico |