C.K.N. Gounder alias C.K.N. Karupanna Gounder vs R. Nachimuthu Gounder

Srinivasan, J.—This revision petition is against an order dismissing the petitioner''s application u/s 5 of the Limitation Act for condonation of

delay of 8 months and 19 days in filing a petition under Order 9, Rule 13, Code of Civil Procedure, to set aside the ex parte decree passed against

the petitioner on 9.8.1985 in O.S. No. 45 of 1985 on the file of Sub Court, Karur.

The suit filed by the respondent is one for specific performance of an agreement dated 22.8.1984 under which the consideration was fixed at

Rs. 70,000 out of which a sum of Rs. 55,000 was paid as advance on the date of the agreement. Alleging that the defendant was evading

performance of the agreement and offering to deposit the balance of sale price into Court, the plaintiff instituted the suit on 16.3.1985. The address

of the defendant was given in the plaint as Pattanalvar Lane, Market Street, Kakkinada, Andhra Pradesh. The summons sent to Kakkinada by

post returned with the endorsement that the petitioner had left. The second summons was sent to Manmari Village and the process server affixed

the summons on the outer door of the house of the petitioner on learning that he had left for Trichy. That was on 20.6.1985. The Court ordered

substituted service by tom-tom in the village and affixture in the Court notice board as well as in the village chavady. The process server made an

endorsement that substituted service was effected as directed by the Court on 28.7.1985. The Court accepted the same and set the petitioner ex

parte on 6.8.1985 and after recording the evidence of the plaintiff passed an ex parte decree on 9.8.1985. When the plaintiff took out execution

proceedings, notice was sent to the petitioner and on 20.3.1986 the process server of the District Munsifs Court, Karur, made an endorsement on

the notice that when he tendered the notice to the petitioner, he refused to receive the same and, therefore, he affixed the notice on the outer door

of the petitioner''s house. On 25.3.1986, the executing Court accepted that as sufficient service and set the petitioner exparte. After the filing of the

draft sale deed and fair sale deed, the executing Court passed an order on 24.4.1986 that the fair sale deed was checked and found to be correct

and directed the matter to be called for 29.4.1986 for registration of the fair sale deed.

On 28.4.1986, the petitioner filed an application to set aside the exparte decree under Order 9, Rule 13, CPC and also an application to

condone the delay of 3 months and 19 days in filing the same. In the affidavit filed in support of the application for condonation of delay, the

petitioner stated in paragraph 2 as follows:

Only to-day I come to know that the respondent-plaintiff has filed the above suit against me for specific performance and obtained an exparte

decree on 3.8.1985 against me.

The petitioner further alleged that he had not executed any agreement of sale in favour of the respondent and that there was long time enmity

between him and the respondent and his father Ramaswamy Gounder. The petitioner also referred to sale deeds executed by him on 22.4.1985

and 29.4.1985 in favour of certain other persons with respect to some of the properties covered by the agreement and claimed that he was bound

to protect the interest of his vendees. Once again, in paragraph 5 of the affidavit it is stated as follows:

... Today I come to know that the suit is filed only against me. Therefore I am constrained to file the petition to condone the delay in filing the

petition to set aside the exparte decree under Order 9, Rule 13 of C.P.C. I further come to know that I was set exparte on 6.8.1985. Though I

come to know the suit only to-day by way of abundant caution I am constrained to file the petition u/s 5 of Limitation Act. As the suit is decreed

on 9.8.1985 and the petition to set aside the exparte decree filed only to-day and the same is beyond 30 days, it is just and necessary that this

Honourable Court may be pleased to condone the delay in filing the petition under Order 9, Rules 13 of C.P.C. Unless and until the delay in filing

the petition under Order 9, Rule 13 of C.P.C. is excused will be greatly affected. If the petition u/s 5 of Limitation Act is allowed the respondent-

plaintiff will not be prejudiced in any manner.

Though the petition is one for condonation of delay, really the petitioner tries to impress upon the Court that there is no delay whatever in

seeking to set aside the exparte decree only on the day on which he filed the application therefor. It has to be noted at this stage that the petitioner

has given his address in the said affidavit as 9, West Govindapuram 1st Cross, Dindigul. In the counter affidavit filed by the respondent, it was

stated that the petitioner was aware of the proceedings in the suit long back and prior to 6.8.1985 when he was set exparte. It was also stated in

the counter affidavit that the petitioner is a permanent resident of Manmari village. The respondent also filed an additional counter in which he

referred to the proceedings for execution of the decree in E.P. No. 19 of 1986 and the refusal of the petitioner to receive the notice in the

execution proceedings on 20.3.1986. Paragraph 5 of the additional counter is in the following terms:

... Knowing the proceedings in the above suit right from the beginning and having waited till the completion of the registration of the sale deed, the

petitioner has come forward with this application on 28.4.1986 with some ulterior purpose.

The petitioner filed a reply statement asserting that he had no residence at all in Manmari and that he was not aware of the proceedings till he

filed the application u/s 5 of the Limitation Act.

The trial Court recorded evidence in detail in that application for condonation of delay. The petitioner examined himself and a cousin of his as his

witness. The respondent besides himself, examined the vettiyan of the village, the process server who effected substituted service of summons in

the suit, a resident of the village Manmari and the process server who affixed the notice in the execution proceedings on the outer door of the

petitioner''s house. After detailed consideration of the evidence, the trial Court held that the petitioner''s permanent residence is at Manmari land he

used to go to Andhara Pradesh for doing business where he stayed for ten days per month. The Court also found that the evidence of the process

server who affixed the notice in the execution proceedings on the outer door of the petitioner''s house when the petitioner refused to accept the

notice was true and that the petitioner knew about the execution proceedings on 20.3.1986. On that basis, the trial Court held that the petitioner

had not filed the application for setting aside the exparte decree within 30 days from the date of knowledge of the execution proceedings and that

the delay of 232 days was not condonable. In the result, the trial Court dismissed the petition filed u/s 5 of the Limitation Act. The present revision

petition is against the said order.

Article 123 of the Limitation Act prescribes a period of 30 days for an application to set aside a decree passed exparte or to rehear an appeal

decreed or heard exparte. Under the third column, the time begin to run from the date of the decree or where the summons or notice was not duly

served, when the applicant had knowledge of the decree. Explanation to the Article is that for the purpose of the said article, substituted service

under Rule 20 of Order 5 of the Code of Civil Procedure, shall not be deemed to be due service. It is common ground in this case that the

summons in the suit was not duly served for the purpose of Article 123 of the Limitation Act Hence, time begins to run only from the date when the

petitioner had knowledge of the decree. It is the case of the petitioner that he came to know of the decree as well as the suit only on the date on

which he filed an application to set aside the exparte decree. Hence, the only question is whether the petitioner came to know of the decree on the

date alleged by him in his application. Though the application is filed u/s 5 of the Limitation Act, it is not the case of the petitioner that he had

knowledge of the decree even before a period of 30 days prior to the date of the filing of the petition and that he could not approach the Court

within the period of limitation on account of any particular cause and that the Court should condone the delay as sufficient cause was shown. In

view of the definite stand taken by the petitioner in his application and in the absence of any other explanation being attempted for not filing the

petition earlier, the only question to be considered by the Court is whether the petitioner had knowledge of the decree on a date prior to the period

of 30 days before the filing of the petition.

In Panna Lal v. Murari Lal AIR 1967 S.C. 1384, it is laid down that the onus is on the defendant to show that the application to set aside the

exparte decree is within time and that he had knowledge of the decree within 30 days of the application. It was held further that if the defendant

produces some evidence to show that the application is within time, it is for the pliantiff to rebut the evidence and to establish satisfactorily that the

defendant had knowledge of the defree more than 30 days prior to the date of the application.

Thus, the initial burden is on the petitioner to show that he came to know of the decree within 30 days prior to the filing of the application. As

seen already, the specific case of the petitioner is that he came to know of the decree on the day on which he filed the application to set aside the

same, Significantly, the petitioner does not at any stage of the proceedings, either in the Court below or here, disclose the source of his knowledge

of the decree. It is not known how the petitioner came to know all of a sudden on 28.4.1986 about the proceedings in the suit and the decree

passed therein. Learned Counsel for the petitioner submitted that it is not necessary for the petitioner to tell the Court how he came to know of the

decree and what is important is the date on which he came to know of the decree. I do not agree with him. When a litigant requires the Court to

believe a particular version of his, the Court is entitled to test the veracity thereof and that can be done only by considering all the surrounding

circumstances. Unless the version put forward by the litigant is plausible and probable in the circumstances of the case, it cannot be accepted as

true by the Court. Where a person deliberately chooses'' to make a bald statement that he came to know of the same or through whose agency he

came to know of it, the Court is bound to look at that version with suspicion. Such a bald version will not in the normal course of events be

accepted by Court. Even when the petitioner was in the witness box, he did not find it fit to state as to how he came to know of the decree on that

particular day, i.e., 28.4.1986.

As pointed out already, the petitioner gave his address in the affidavit filed in support of the application as Dindigul and the reiterated he same

in the Chief-examination. He deposed that he used to stay mostly at Dindigul and he had business at Kakkinada. According to him, he used to stay

in Dindigul whenever he came to Tamil Nadu. In the chief-examination he stated that he used to go to Manmari now and then, but never stayed

there. This version was proved to be false by Exs.B-1 and B.2, which are portions of his deposition in an earlier suit O.S. No. 936 of 1980 on the

file of the District Munsif s Court, Karur. He had deposed in that proceeding that he got a house for his share in Manmari and that he was residing

there. He admitted having paid house-tax for the said house. He also stated therein that all the 200 residents of Manmari know that he was residing

in that village. The petitioner had also applied to the Inspector of Land Ceiling Development Department, Aravakkurichi, Karur on 13.3.1985 and

7.10.1985 for issue of patta in his favour in the first instance and then for joint patta in favour of himself and his brother Ramaswamy Gounder.

These petitions are marked as Exs.X-1 and X-2. In both the petitions he gave his address Manmari and expressely stated that he was living in

Manmari village. When those documents were put to the petitioner in cross-examination he did not give any explanation for having given his

address at Manmari in those petitions. But, in re-examination he stated that because he had lands in Manmari, he gave the address like that.

Obviously, the explanation attempted in the re-examination cannot be accepted, the statement in the two petitions was specific that he was residing

at Manmari. In cross-examination he has also admitted that he is cultivating the lands directly even after going to Andhra Pradesh and that he used

to come to Manmari from Andhra and cultivate the lands. He claimed that his wife and Panna''i servants used to take care of the cultivation. He has

also admitted he has got an accountant in Kakkinada who used to be in charge of the affairs there during his absence. Exs.B-3 to B-5 are

registered sale deeds executed by the petitioner on 22.4.1985, 29.4.1985 and 5.3.1986. In all the three sale deeds, he has described himself as a

resident of Manmari village. He admits in his evidence that he came a week prior to the execution of the sale deeds from Kakkinada and returned

after a week after the completion of the first two sales. Similarly, with regard to the third sale, he admits that he came from Andhra a week prior

thereto and returned after a week thereafter. Even from his evidence it is clear that the petitioner was in Manmari between 15.4.1985 and

6.5.1985 and again from 26.2.1986 to 12.3.1986. It is clear from his evidence that his version in the chief-examination that he used to stay only in

Dindigul whenever he came to Tamil Nadu is clearly false and put forward only for the purpose of the present proceedings.

R.W.5 is the process server of the District Munsif s Court, Karur, who took the notice in the execution proceedings to serve on the petitioner.

His definite evidence is that the petitioner refused to receive the notice when tendered to him. R.W.5 deposes that he affixed the notice on the

outer door of the petitioner''s house and also obtained attestation from witnesses. The suggestion made in the cross-examination that he did not go

to Manmari Village at all and that he created the documents in Karur itself has been denied by him. The trial court has accepted the evidence of

R.W.5 and there is no reason to differ from the trial Court, particularly when I am sitting in revision.

It has been held by a Division Bench of this Court in Pichai Ammal Vs. Vellayya Thevar alias Ochu Thevar, that when a person refuse to

receive a registered cover from the postman, it would follow that he had construction notice of the contents of the cover. If constructive notice can

be imputed to a person from refusal to accept a registered post, a fortiori it can be done in the case of refusal to accept summons tendered by a

process server in person. Once the evidence of R.W.5 is accepted, it goes without saying that the petitioner had knowledge of the decree in the

suit on 20.3.1986. No doubt it has been held in a number of cases that the knowledge required for the purpose of Article 123 of the Limitation

Act is knowledge of the particular decree which is sought to be set aside and not any vague information that some decree has been passed against

the person concerned.

Learned Counsel for the petitioner invites my attention to the decision in T. S. P. L. Palaniappa Chettiar Vs. A. S. Vedachala Mudaliar, . In

that case, it was found by the Subordinate Judge that it had not been that the defendant had knowledge of the decree more than 30 days before he

made his application to set aside the exparte decree. That finding was considered to be one of fact. The Court observed,

... All that he was told was that some unknown plaintiff had obtained against him some sort of a decree in a suit, of which he was given no details.

Article 164 requires that the party should have knowledge of the decree that has been passed against him. The only thing on which I have felt some

doubt is whether such information as the defendant had should not have put him on enquiry. As to that, I agree with the Subordinate Judge that

there was no obligation on his part to enquire further. The duty rather was on the plaintiff of giving him full information as to the litigation and the

nature of the decree.

The above observations will not apply to the present case as the information about the decree in this case was given to the petitioner by the

process server himself and the petitioner had refused to accept the notice. It is also the evidence of the process server that he affixed the notice on

the outer door of the petitioners house and the petitioner would certainly have in the normal course of events read the notice and known the

particulars of the decree passed against him.

Learned Counsel reies upon the judgment in Syed Muhammad Sahib v. Alagappa Chettiar 49 M.L.J. 445, wherein it was laid down that for

the purposes of limitation, a vague knowledge that a decree had been passed by some Court is not enough and that it must be found that the

defendant had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a

particular sum. The test laid down in that decision is satisfied in the present case and the petitioner herein had knowledge of the particular decree

passed against him and the nature and contents thereof on 20.3.1986.

The decisions in Murugayyan Kangiar Vs. Marudayyammal, and in Sri Krishna Rice Mills, a Firm by partner M.R.M.K. Chidambaram Pillai

Vs. P. Rajagopala Konar, , wherein it was held that mere knowledge that there was a suit pending against him would not necessarily mean that the

person concerned was aware of the fact that a decree had been passed against him, so as to compute limitation from the date of the decree, will

not help the petitioner herein in view of the facts found above.

The rulings in K. Pugal v. P. Asoka 85 L.W. 86, Kuppaiyee Animal v. Solammal 100 L.W. 315 V. Padmanabhan v. R.R. Shah and 4 Ors.

(1988)1 L.W. 1. relied on by learned Counsel for the petitioner are of no avail as the facts in the present case do not bear any resemblance to the

facts in those cases.

As laid down by the Supreme Court in Panna Lal v. Murari Lal AIR 1967 S.C. 1384, it is a question of fact in each case whether the

information conveyed to the defendant is sufficient in impute to him knowledge of the decree within the meaning of Article 164. The Supreme

Court has pointed out that ""the test of the sufficiency is not what the information would mean to a stranger, but what it meant to the defendant in the

light of his previous dealing with the plaintiff and the facts and circumstances known to him."" According to the petitioner''s version, there has been

longstanding enmity between the petitioner on the one hand and the respondent and his father on the other. Admittedly, the respondent is the son of

the petitioner''s brother. When on 20.3.1986 the petitioner came to know of the execution proceedings from the process server, he had

undoubtedly knowledge of the material facts concerning the decree. As pointed out by the Supreme Court in the aforesaid case, it is not necessary

that a copy of the decree should be served on the petitioner.

In M. Ramalingam Vs. Bhagwandas Mahesh Kumar Maheswari, Hindu Undivided Family by Kartha, Bhagwandas, , a Division Bench of this

Court had occasion to consider in detail the effect of substituted service, in a suit for the purposes of Article 123 of the Limitation Act. The

following passage in the judgment of the Division Bench is opposite.

It is true that Order 5, Rule 20(2) of the Code states that service substituted by order of Court shall be as effective as if it had been made on the

defendant personally. But this is now subject to the Explanation to the present Article 123 of the Limitation Act, 1963, and where an application to

set aside the ex parte decree is filed, substituted service under Order 5, Rule 20 of the Code shall not be deemed to be due service. At the same

time, it is not possible to lay down that only because substituted service was resorted to and effected, knowledge on the part of the defendant must

always stand ruled out. Even from service by substituted mode, otherwise duly effected, knowledge is inferrable, if the facts as circustances of the

case warrant the same.

Learned Counsel for the petitioner places reliance on a decision of the Allahabad High Court in Surendra Nath Mittal Vs. Dayanand Swarup

and Another, , wherein it was held that dismissal of an application for condonation of delay in seeking to set aside an exparte decree merely on

ground that each and every day''s delay had not been explained is illegal and that the Court below had to consider the application for condonation

of delay on an overall consideration of the facts on record and not as a matter of mathematical precision. Learned Counsel also places reliance on

the pronouncement of the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, . In that case the

State of Jammu and Kashmir preferred an appeal against a decision enhancing compensation in respect of acquisition of lands for a public purpose

to the extent of nearly 14 lakhs rupees by making an upward revision of the order of 800 per cent.(from Rs. 1,000 per kanal to Rs. 8000 per

kanal). That appeal was dismissed as time barred as being four days beyond the prescribed time and an application for condonation of delay was

rejected. The State of Jammu and Kashmir preferred an appeal by Special Leave to the Supreme Court. While allowing that appeal, the Supreme

Court observed as follows:

The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts

to do substantial justice to parties by disposing of matters on ''merits''. The expression ""sufficient cause"" employed by the legislature is adequately

elastic to enable the courts to apply the law in a meaningful manner which serves the ends of justice-that being the life-purpose for the existence of

the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court.

But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on

principle as it is realised that:

Ordinarily a litigent does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As

against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

""Every day''s delay must be explained"" does not mean that a pedantic approach should be made. Why not every hour''s delay, every seconds

delay ? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical consideration are pittedagainst each other, cause of substantial justice deserves to be preferred for the

other side cannot claim to have vested right in injustice being done because of anon-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does

not stand to benefit by resorting to delay. In fact, he runs a serious risk.

It must be grapsed that judiciary is respected not on account of its power to legalise injuries on technical grounds but because it is capable of

removing injustice and it is expected to do so making a justice oriented approach from this perspective, there was sufficient cause for condemning

the delay in institution of the appeal.

Neither the ruling of the Allahabad High Court no the pronouncement of the Supreme Court would help the petitioner in the present case. As

stated earlier, the petitioner has not prayed for condonation of delay on the ground that there was sufficient cause therefor. The petitioner preferred

to rest his application on the only ground that he came to know of the decree on the date on which he filed the application. That statement of the

petitioner had been found to be false. The petitioner has not come forward with any alternatives. Having failed to take the Court into confidence by

placing the relevant and material facts before the Court, it is not open to the petitioner to raise a plae of ad miseri cordum when he finds that the

Court has discerned the truth and he had knowledge of the decree much earlier than the date mentioned by him and that such date is more than 30

days prior to the date of the application. The general principles laid down by the Supreme Court will not apply to the facts of this case.

I do not find any error in the order of the Court below rejecting the application for condonation of delay. The civil revision petition fails and it is

dismissed with costs.