Romanath Bural vs Guggodonandan Sen and Others

Hill, J.—If the case of Nusur Mahomed v. Kazbai is to be regarded as laying down the proposition that a Court which transmits a summons under the provisions of Section 85 of the CPC to another Court for service on the defendant is bound by a return made by the latter Court to the effect that the summons has been duly served, I should feel some difficulty in following it. It was perhaps, however, not intended to lay down such a rule without qualification. Section 85 does not, so far as I can perceive, require the Court which served the summons to make a return to the Court from which it issued touching the sufficiency of the service. Sections 87, 88 and 90 seem to afford the only instances in which a return of that nature is prescribed. The declaration provided for by Section 82 relates only to a limited class of cases, those namely in which the provisions of Section 80 have come into play, and cannot, as it appears to me, have been intended, when made by a Court to which a summons has been transmitted for service to preclude inquiry on the part of the Court issuing the summons as to the sufficiency of the service. The irregularities of "mofussil service" are so numerous, as daily experience shows, that many mischievous results would follow from the adoption of such a rule. The duty of the serving Court u/s 85 is to proceed, on receipt of the summons, as if it had itself issued it, and then to return it, with the record (if any) framed under the section, to the Court from which it originally issued; and in my opinion it then devolves upon the latter Court, when the defendant does not appear, to determine upon the sufficiency of the service before proceeding to try the suit. Such, moreover, has been the practice on the Original Side of this Court; and were I to decide otherwise I should be deciding in contravention of the settled practice of the Court. The plaintiff, therefore, must satisfy me that the summons has been duly served.