138-NLR-NLR-V-58-L.-H.-BABUNNONA-Appellant-and-N.-B.-ARIYASENA-et-al.-Respondent.pdf
1957Present : Basnayake, C.J., and Sinnetamby, J.
Ij. FT. BABUX OXA, Appellant, and X. 13. ARIYASEXAel ul., Respondents
S.G. 122 (Inly.)—D. G. Matara, 8101P
Sammons on dejendunt—Personal service necessary—Civil Procedure Code, s. 50.
Tho provisions of section 50 of tho Civil Pro cedi no Code regarding sorvicoof summons on a defendant, arc imperative anil can bo satisfied only if thesummons is delivered or tendered to tho defendant personally.
A PPEAL from an order of the District Court, Matara.
R.A. Kannangara■, with A.S. Vaniga-sooriyar, for Defendant-Appellant.
-Y. B. Weerasooria, Q.C.. with D. E. V. Dis-sanayake, for Plaintiffs-Respondents.
February 2S, 1957. Basnayake. C.J.—
The defendant-appellant sought unsuccessfully to have the inter-locutory decree in this case set aside on the ground that she had notbeen served with summons. The process server, who was called as a
witness, admits that he did not serve the summons on the defendantherself. He states that he delivered the summons to her husband, andthat the defendant was in the house at the time. The defendant deniedthat she was in her husband’s house on the date on which the Fiscal'stated that he delivered the summons to her husband and pleaded that■ she had not been served with summons in the maimer prescribed by theCivil Procedure Code. Section 59 of the Civil Procedure Code requiresthat service of summons shall be made “ h}' delivering or tendering tothe defendant personally a duplicate thereof The requirement of theportion is satisfied only if the summons is delivered or tendered~to~ thedefenda.nt. pm-gnnaHy The provisions of the section arc imperativeand should be strictly observed.- Clearly in the instant case, the statu-tory requirement has not been complied with. The defendant is thereforeentitled to the relief she seeks. We therefore set aside the order of thelearned District Judge refusing to vacate the interlocutory decree anddirect that the interlocutory decree be vacated and that the appellantbe allowed to file answer and defend the action. The appellant is entitledto the costs of this appeal.
Sinwetambv, J.—I agree.
Order ■•set a-vidc.