Principles

·  CIVIL PROCEDURE -- Service — Substituted service not valid without good cause shown — Civil Justice Ordinance. s. 62.

A default decree is a nullity where defendant was served by substituted service without a showing why personal service was not available under Civil Justice Ordinance. s. 62.
Advocate: Abdel Basit Abdel Moneim …………for respondents

Judgment

B. Awadalla, J., March 4, 1961 :— Applicant (defendant in the suit) is a merchant of Wad Medani. On February 15, 1960 the Abul Ela Trading Co. (respondents) instituted a suit before the District Court, Wad Medani, for a sum of LS.258.008m/ms for goods supplied to him. Action was allowed and hearing fixed for April 8, 1960. No summons was served on the defendant for that date and on May 15, 1960 the case was brought before the Judge, who made a note that the said date was a Friday and so the matter should pend enquiry. Two days later, i.e., on May 17, 1960, plaintiffs appeared and asked for a date and for summons by substituted service. That application was immediately granted and the record shows nothing to indicate on what basis the Court believed ordinary summons would be futile. Case was adjourned for July 3, 1960. There is a note to show that a copy of the summons was affixed on defendant’s shop. It is clear from a note endorsed by the Bailiff on the order for provisional attachment that defendant’s shop was at the time the suit was instituted. run by his nephew, for, apparently defendant himself was in Egypt for treatment. (Cf., his application to the Judge of the High Court)

There is therefore no doubt that the District Court has completely disregarded the provisions of Civil Justice Ordinance, S. 62. Under that section, it is conditional for allowing substituted service that the Court be satisfied that there was reason to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any reason the Court is of opinion that summons cannot be served nt the ordinary way. In the circumstances, the decree is a nullity and cannot stand.

This application is therefore allowed with costs and case returned for a proper rehearing.

A. R. El Nur, J., March 4, 1961:— 1 Concur.

• Court:— B. Awadalla. j. and A.R. El Nur, J.