As regards the point of limitation raised by the learned advocate for the petitioners, the same is devoid of substance. In terms of section 123 of the Limitation Act an application for setting aside the ex parte decree can be filed within 30 days from the date of the decree, but where the summons or notice was not duly served, it can be filed within 30 days from the date of knowledge of the decree to the applicant. The explanation to section 123 further clearly provides that substituted service under Order V, Rule 20 shall not be deemed to be due service. In other words, in case of service of summons by substituted service under Order V, Rule 20 of C.P.C. the period of 30 days for setting aside the ex parte decree is to be counted only from the date of acquisition of knowledge of the decree by the applicant.
Bombay High Court
Shri Shantaram Fatu Prabhu Desai & ... vs Smt. Harsha Umesh Sardessai & ... on 17 February, 1998
Equivalent citations: 1998 (3) BomCR 730, 1998 (3) MhLj 631
Bench: R Khandeparkar
1. By the present revision application, the petitioners are challenging the order dated 18th March, 1997 passed by the Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 127/95 in Special Civil Suit No. 57/89 whereby the trial Court has allowed the application filed by the respondents herein under Order IX, Rule 13 and thereby has set aside the ex parte decree passed against them in said Special Civil Suit No. 57/89.
2. The facts in brief relevant for the decision are that the petitioners herein filed Special Civil Suit No. 57/89 on 1st December, 1989 against the respondents and three other persons for mandatory injunction. Since the service of the bailiff could not be effected on the respondents herein, the petitioners applied for substituted service by publication of summons in the newspaper and the same was allowed by the trial Court by Order dated 27th July, 1992. The summons was published in the daily, 'Gomantak Times', according to which, the respondents were required to appear before the trial Court on 24th February, 1993. Since the respondents failed to appear on the said date, the order to proceed ex parte was passed by the trial Court and the evidence of the petitioners was recorded on 29th March, 1975 and suit was partly decreed by the judgment and decree dated 30th April, 1993. The petitioners thereafter filed an application for execution of the said decree and the notice of the same was served by registered A.D. post upon the respondents on 8th July, 1995. Thereafter on 7th August, 1995 the respondents herein moved an application under Order IX, Rule 13 for setting aside the said decree on the ground that there was no proper service of summons on the respondents by following the mode established under the law and the publication which was ordered to be made under Order V, Rule 20 in Daily 'Herald' was in fact published in Daily 'Gomantak Times". However, the respondents are not subscribers to any of the said dailies and they read only the Marathi Daily and as such they had no occasion to know about the publication of summons. The trial Court by the impugned order held that there was no proper service of summons upon the respondents herein on account of failure on the part of the petitioners to take necessary steps to serve the respondents by registered A/D as required by law as well as on account of non-affixation of summons on the residential premises of the respondents and that even the publication though ordered to be done in the Daily 'Herald' was published in "Gomantak Times". The trial Court therefore set aside the ex parte decree by the impugned order.
3. While assailing the impugned order Shri M.S. Sonak, learned advocate appearing for the petitioners submitted that the trial Court erred in ignoring the issue of limitation while entertaining the application under Order IX, Rule 13 when on the face of the record the application was filed nearly 31 months after the expiry of limitation for setting aside such decree in terms of Order IX, Rule 13 of C.P.C. He further submitted that the trial Court had no powers to review its order regarding satisfaction of service of summons by substitute service, which the Court had arrived at before passing the order to proceed ex parte in the suit. According to the learned advocate, the records disclose that the petitioners had taken all the steps to serve the respondents as required under the law and since all those efforts had failed, the petitioners had applied for substitute service in terms of Order V, Rule 20. According to the learned advocate, the service of summons by publication in a newspaper is one of the modes of service of summons legally permissible under Order V, Rule 20 and in the instant case the records disclose that the trial Court after being satisfied of the publication of the summons in the Gomantak Times, passed the ex parte order on 24th February, 1993, the date on which the respondents failed to appear despite of the said summons being published in the said newspaper. He further submitted that it is not in dispute that the Gomantak Times is a local newspaper. He then submitted that the records further disclose that there was a notice sent to the respondents after decree of the suit on 9th March, 1994 by the advocate of the petitioners informing about the said decree and, therefore, the respondents had sufficient opportunity to know about the decree much prior to 8th July, 1995.
4. Shri S.S. Kantak, learned advocate appearing for the respondents, on the other hand, submitted that the trial Court had allowed the application for setting aside the ex parte decree mainly on the ground that the summons in the Special Civil Suit No. 57/89 was not duly served upon the respondents. The finding arrived at to the effect that there was no effort made on the part of the petitioners to serve the respondents by registered A/D and there was no affixation of summons on the outer door of the residential premises of the respondents clearly disclose the application of mind of the trial Court and on being satisfied that the summons was not duly served upon the respondents that in exercise of its discretion has set aside the ex parte decree. According to the learned advocate, no case is made out for interference in the impugned order which has been passed in the exercise of discretion by the trial Court. Further the learned advocate drew my attention to Order VI, Rule 14-A(1) as amended by Bombay High Court and submitted that it was the statutory duty of the petitioners being plaintiffs to take proper steps to serve the summons by registered post as well as by affixing summons on the outer door of the residential premises of the respondents before resorting to the remedy of substitute service under Order V, Rule 20 and the petitioners having failed to do so no fault can be found with the impugned order of the trial Court whereby the trial Court has allowed the respondents to participate in the civil suit and to defend their case, which was sought to be denied to them earlier on account of non-service of summons.
5. Upon hearing the learned advocates for the parties and on perusal of the records, it is seen that in terms of Order IX , Rule 13 C.P.C. the Court is empowered to set aside the ex parte decree in case it satisfies itself that the summons was not duly served upon the defendants in the suit as well as when the defendant was prevented by any sufficient cause from appearing before the Court when the suit was called out for hearing. The impugned order ex-fade discloses that on the basis of the materials on record, the trial Court has arrived at a clear finding that the petitioners had not filed any application asking for service of summons by registered A/D post. The trial Court has also arrived at the finding that the petitioners did not ask for service of summons by affixation on the outer door of the residential premises of the respondent. As rightly submitted by the advocate for the respondents, the Order VI, Rule 14-A(1) to (4) as provided by the Bombay High Court clearly provides thus:-
"14-A - Address for service of notice:-
(1) Every pleading when filed by a party shall be accompanied by a statement in the prescribed form, signed as provided in Rule 14, regarding the address of the party. Parties subsequently added shall immediately on being so added file a memorandum in writing of this nature.
(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. Notice of such change shall be given to such other parties as the Court may deem it necessary and the form showing the change may be served either on the pleaders or such parties or be sent to them by registered post pre-paid for acknowledgement as the Court thinks fit.
(3) The address furnished in the statement made under sub-rule (1) shall be called the "registered address" of the party, and shall until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of six years after the final determination of the cause of matter.
(4) (i) Where a party is not found at the registered address and no agent or adult male member of his family, on whom a notice or process can be served is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address of that party by registered post pre-paid for acknowledgement (which pre-payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.
(ii) Where a party engages a pleader, notice or process issued against the party shall be served in the manner prescribed by Order III, Rule 5, unless the Court directs service at the registered address of the party".
It is thus clear that in terms of the said Rule it is absolutely necessary for the plaintiff to take necessary steps to serve the defendant by registered post when he cannot be served through a bailiff of the Court and in addition he has to see that the copy of the summons is affixed on the outer door of the residential premises of the defendant when a person to whom the summons is addressed is not found at the premises of the registered address. The trial Court on going through the records has arrived at the finding, as already noted above, that the petitioners herein had neither taken steps for affixation of summons on the residential premises of the respondents nor for service of summons on the respondent by registered post. Indeed the fact that there was no attempt made by the petitioners either to serve the summons by registered post or to take steps for affixation of copy of the summons on the outer door of the residential premises of the respondents is not disputed. In this set of facts I do not find any case made out for interference in the impugned order wherein the trial Court in exercise of its discretion, which has been judiciously exercised, has held that the summons in the main suit was not duly served on the respondents.
6. As regards the point of limitation raised by the learned advocate for the petitioners, the same is devoid of substance. In terms of section 123 of the Limitation Act an application for setting aside the ex parte decree can be filed within 30 days from the date of the decree, but where the summons or notice was not duly served, it can be filed within 30 days from the date of knowledge of the decree to the applicant. The explanation to section 123 further clearly provides that substituted service under Order V, Rule 20 shall not be deemed to be due service. In other words, in case of service of summons by substituted service under Order V, Rule 20 of C.P.C. the period of 30 days for setting aside the ex parte decree is to be counted only from the date of acquisition of knowledge of the decree by the applicant It is on record that the respondents leamt about the said decree only on 8th July, 1995 pursuant to the service of summons by registered post regarding the execution application filed by the petitioners. There is no material to arrive at any conclusion that the respondents herein had any knowledge of the decree prior to 8th July, 1995. Being so, the submission that the application was filed beyond the period of limitation and the trial Court did not take this into account is devoid of substance.
7. As regards the last submission of the learned advocate for the petitioners that the substituted service under Order V, Rule 20 was sufficient compliance of the provisions regarding service of summons also cannot be accepted in view of clear provisions in that regard in Rule 14-A of Order VI of C.RC. The said rule clearly provides that the plaintiff shall endeavour to serve the defendants by registered post or by affixation or summons on the residential premises of the defendants when the normal service of summons by the bailiff to the person to whom the summons is directed cannot be made due to the absence of such person. Undisputedly in the instant case no such efforts were made by the petitioners and as such the service by publication under Order 5, Rule 20 cannot be a valid service.
8. In the circumstances, no case is made out for interference in the impugned order and the application is liable to be rejected and is, accordingly, rejected with costs. The interim order granted in this petition is hereby vacated. The trial Court to proceed with the suit in accordance with law. The parties to appear before the trial Court for the same purpose on 30th March, 1998.
9. Revision disimissed
No comments:
Post a Comment