*8. 17. n. (c.) †Act I. 1868, S. 2, and esp. note p. 65. See n. p. 65. § SB, 38, 49. 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 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. M, 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 within whose jurisdiction the process is to be served, Service within Presiden cy towns and Rangoon of Courts. 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. M. 87. If the defendant be in jail, the summons shall be delivered to the officer in charge Service on defendant in of the jail in which the defenjail. dant 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. Procedure if jail be in a different district. M. 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. M. 89. (60) If Service when defendant resides out of British India and has no agent to accept the defendant resides out off 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. service. the Court must be satisfied that defendant was residing in the house in such a manner as to make it probable that a knowledge of the service of the summons will reach him. Mad. H. O., V. 101. Such endorsement is not legal evidence of the service of the sum mons. Obhoy Chander Dutt v. Erskine, S. W. R. III. M. 11. Khundun Lal v. Nur Ali, ib. X. C. R, 3. See . (e.) P. 27. (j) The present place of abode, if the defendant have any; the last which he had, if he has ceased to Ex parte Jones L. M. have any. and P. I. 357. (k) Summonses issuing under sec. 85 of the same Code shall ordinarily be directed, not to the Judge of the district where it has to be served, but to the Court " by which it can be most conveniently served," i. e. to the Munsiff within whose jurisdiction the defendant or the witness (as the case may be) resides. (Cal. C. O., 1872, No. 17, May, 14th). N. W. P. ules. Officers of N.-W. P. Civil Courts are instructed to send all civil processes direct to the subah of the district in the Nipal Tarai in which the parties concerned may reside. 5. The principal Nipal kacharis to which processes should be sent are In the Western Tarai Butwul, Tansein, and Towlehwa kacharis, opposite to the Gorakhpur and Basti districts. Banki kachari, opposite Oudh and Rohilkhand. Doti kachari, opposite Almora. Alan, Kullia, and Burrewa kacharis, opposite to the Champaran district, Kurrurbunna, Jalesar, and Sirah kacharis, opposite Tirhut district. Hunmannagar and Rungiti kacharis, opposite to the Purneah district. Ilam and Dhunkuta kacharis, opposite to the Darjeeling district. C. O. H. C. N.-W. P. 81, 82. suit is instituted, a uniform postage charge of eight annas, and in all appeal cases, where processes have to be served by post, a charge of four annas should be levied in addition to the process fee. No stamps should be sent with the processes for return postage (unless the process is to be served in districts beyond the Panjab); but each district, after serving the process, will return it with the postage paid. All processes should be on strong, though not thick paper; but when a commi-sion is sent to take evidence, it must be on good durable paper, for it will form part of the record of the case; and it should always be accompanied by an English docket to ensure immediate attention. In case of an ordinary process, no covering docket or rubkari will be necessary; an endorsement to the Deputy Commissioner of the district in which it is to be served, with any explanation as to residence of the party, &c., can be recorded on the process. The postage fee ought not to be received unless and until the party desires that the process should be transmitted by post. The sums collected on account of postage will form a District Iostage Fund, from which the postage of all processes, reminders, &c., will be disbursed. The surplus will be credited to Government at the end of every half-year. The Sheriff will open a register in the prescribed form, showing the receipts and disbursements on account of postage of processes. This register should be inspected and signed by the District Officer at least once a month. Deputy Commissioners must give prompt attention to all processes required to be served at the request of Courts of another district. In every district an A. C. or E. A. C. should be charged with the duty of seeing that no unnecessary delay occurs. When the defendant resides in another province, the Judge must decide whether he will send an officer of the Court, or make use of the post. There is no objection to a civil process being transmitted by a peon to the Court within whose jurisdiction the defendant resides if the distance is not excessive. Full particulars of the name, father's name, caste, occupation, and place of abode of the defendant should be inserted in the summons. In order to ensure service, it will ordinarily be necessary for some person to attend to point out the individual summoned. In the absence of such person, however, the officer of the Court will make all endeavours in his power to discover him. *S. 37. M. 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 return the summons with an endorsement under his hand that the summons has been served* (m) on the defendant in manner hereinbefore directed, such endorsement shall be conclusive evidence of the service. Substitution of letter for summons. M. 91. (64) The Court may, notwithstanding anything herein before 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 (n) 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. M. 92. (65) When a letter is so substituted for a summons, it may be sent to the defendant by post or by a special messenger selected by the Court, or Mode of sending such letter. in any other manner which the Court thinks fit; unless the +Ss. 38, 40, 41. defendant has an agentt empowered to accept service of summons, in which case the letter may be delivered or sent to such agent. Service of Process. M. 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 it. The Court fee leviable for such service shall be levied before the process is issued. Costs of service. M. 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 here Notices and orders in writing how served. inbefore provided for the service of summons. Postage. M. 95. (66) Postage, where chargeable on any notice, summons, or letter issued under this Code, and forwarded by post, Postage. and the fee for registering the same, shall be paid before the communication is forwarded. (0) All processes should set forth distinctly both the Court from which the process issues and the name of the district. The day fixed for the appearance of the party should be so fixed as to allow him ample time, after the service of the process, to appear and answer in person, or by pleader, on such day, in the Court by which the process is issued. In every case in which the post is made use of, the process must be forwarded postpaid, and be accompanied by a remittance sufficient to cover the service required and the postage chargeable on the return. No processes are to be sent on Her Majesty's service which do not relate strictly to the public service. The cost of service, &c., should be taken from the party at whose instance the process is issued, in cash and not in stamps; and should be remitted under registered cover, by a money order or postage stamps. Processes for service (1) within the local limits of the original jurisdiction of the High Court of Calcutta, and commissions for examination of witnesses, see secs. 86,386., should be forwarded to the Small Cause Courts of such towns. (2) The city of Lucknow should be addressed to the Civil Judge, and not to the Judicial Commissioner. (3) In Sindh should be transmitted to the Judge of the Sadr Court, Karachi. All correspondence between judicial officers in the Panjab and the Court of another province should be conducted in the English language. In the case of Native officers, the Deputy Commissioner or one of his Assistants should be the channel of communication. J. C. P. vol. I., pp. 21, 22, & 23. District Judges should always endorse on a writ received from the High Court the date of receipt, and in returning explain any delay beyond the period prescribed for service. Bom. C. O. 9. (1) The Govt. of India do not regard Berar as territory vested in Her Majesty by the statute 21 & 22, Vic. c. 106, but as native territory administered by the British Govt. on behalf of H. H. the Nizam, and for certain purposes specified in the Treaty of 1853. Letter No. 1526G of 1875, Govt. I. F. D. (m) Residents should exercise great care, inasmuch as their endorsement has been made conclusive evidence, evidence which may not be disproved, if we are to follow the analogy of conclusive proof in Act I. of 1872 sec. 3. There the words however are qualified by the expression "in this Act." In Bom. a letter should always be sentto1st, 2nd and 3rd class Sirdars and native gentlemen ranking with them. See preface to Chap. IX. (n) See forms attached to Sch. IV. These may in most cases be served by attorneys also. see sec. 636. (0) Post Office authorities in India refuse to register or give receipt for letters to addressees out of the jurisdiction of the Secretary of State for India. Where such registered letter cannot be sent, a summons under this section cannot go. Casim Azim Dooplay v. Casim Muhammad Baroocha S. W. R. X. 349. A special bailiff cannot be sent to serve an ordinary civil process in a foreign country. B. L. R. II., 59. For service of summons on Government officers see secs. 422; on companies and corporations, sec. 436; and on military men, sec. 467 & 468. * S, 68, +Ss. 36,-38. See. p. 69. § S. 156. CHAPTER VII. OF THE APPEARANCE OF THE PARTIES AND CONSE- Parties to appear on day fixed in summons for defendant to appear and an M. 96. (109) On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-houset in person or by their respective pleaders‡, (a) and the suit shall then be heard, unless the hearing be adjourned to a future day fixed by the Court. M. 97. If on the swer. Dismissal of suit where consequence of plaintiff's See App: Pro- ing it, cess. & Act VII. 1870. **Act of 1877 the Court may order Proviso. day so fixed for the defendant to appear and answer, it be found that the summons has not been served upon him in consequence of the failure of the plaintiff to pay the Court feel leviable for such service, that the suit be dismissed: such order shall be passed, although the summons has not been served upon the defendant, if, on the day fixed for him to appear and answer, he attends in person or by a duly authorized agent,† when he is allowed to appear by agent. M. 98. (110) If suit to be dismissed. on the day fixed* for the defendant to appear and answer, or on any If neither party appear, other subsequent day to which the hearing of the suit ist adjourned, neither party appears, the suit shall be dismissed, unless the Judge, for reasons to be recorded under his hand, otherwise directs. (c) In such case plaintiff may bring fresh suit; M. 99. (110) Whenever a suit is dismissed under section 97 or section 98, the plaintiff may (subject to the law of limitation)** bring a fresh suit; or if, thirty days from the date of the order dismissing the suit, he satisfies the Court that there was within the period of or Court may restore the suit to its file. a sufficient excuse for his not paying the Court fee required within the time allowed for the service of the summons or for his non-appearance, as the case may be, the Court shall pass an order to set aside the dismissal and appoint a day for proceeding with the suit. M, 100. (111) If the plaintiff appears and the defendant does not appear, the procedure Procedure if only plain tiff appear. When summons was duly served. |