Janaky Amma vs Bava Kunji and Another

Vithayathil, J.—The Plaintiff in O.S. No. 26 of 1950 of the Crangannore Munsiff''s Court is the revision Petitioner in this case. The revision petition is from an order allowing the petition of Defendant 1 to set aside an ''ex parte'' decree passed against him. The ''ex parte'' decree was passed on 15th February 1951 and the petition to set aside the decree was filed on 26th February 1951. Defendant 2 is the wife of Defendant 1. She entered appearance and filed a written statement and it was stated in the written statement that it was filed on behalf of Defendant 1 also. The application filed by her on 15th February 1951 for time to adduce evidence was dismissed by the lower Court and the suit was decreed on that day.

The summons issued to Defendant 1 was served under Order 5, Rule 20, CPC by means of substituted service as his whereabouts were not known. In the petition to set aside the ''ex parte'' decree it was alleged that Defendant 1 was a lascar in a ship from November 1949 till February 1951, that he returned to Crangannore only on 24th April 1951, that there was no proper service of summons on him, and that he was prevented by sufficient cause from appearing in Court when the suit was called on for hearing.

The lower Court found that Defendant 1 was in Mercantile Marine service from 11th November 1949 till 12th February 1951 and that he was discharged from the Bombay Port on 12th February 1951. Although the lower Court does not definitely find that the summons was not duly served on Defendant 1 it has proceeded on the basis that the summons was not duly served. The learned Advocate for the revision Petitioner argues that Defendant 1 has not shown that the service of summons in this case was not proper. Substituted service under Order 5, Rule 20 is as effectual as personal service as provided in Sub-rule (2) of Rule 20. It is for Defendant 1 to show that the service of summons in the case was not proper. His evidence does not show that substituted service was not proper service in the circumstances of this case. He admits that he was aware of the institution of the suit and that he had instructed Defendant 2 to file a written statement in the case. In the circumstances it cannot be said that the summons in this case was not duly served on Defendant 1. In this connection reference may be made to the following observation of Mukherji J. in - Ram Bharose Vs. Ganga Singh :

... The Court has to consider, in view of all the circumstances of the case, for example, the place where the Defendant was when the summons was issued to him, where and how the summons was served, and so on, in order to see whether there was due service. For example, if a man has gone to Burma to earn a living and he has relations at home with whom he is in constant touch, and the summons is served on the Defendant by affixation of a copy of it on the outer door of his house, it may be open to the Court to infer that the service was good, it being expected that the Defendant''s close relations, living jointly with him, in the same house, would inform him of the case.

The next question for consideration is whether Defendant 1 was prevented by sufficient cause from appearing in Court when the suit was called on for hearing. The lower Court has not recorded a definite finding on this point also. It is, however, stated in the order that Defendant 1 could have, if he desired, filed a written statement and contested the suit by appointing, a pleader. The learned Advocate for the revision Petitioner argues that if there was nothing to prevent Defendant 1 from appointing a pleader and filing a written statement in the case it cannot be said that he was prevented from appearing for the purpose of the case as provided in Order 5, Rule 1, Sub-rule (2), CPC which reads thus:

A Defendant to whom a summons has been issued under Sub-rule (1) may appear,

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(c) by a pleader accompanied by some person able to answer all such questions.

If appearance of Defendant 1 was possible in any one of these three modes it cannot be said that he was prevented from appearing when the suit was called on for hearing. The word "appearing" in Order 9, Rule 13 should be interpreted in the sense in which it is used in Order 5, Rule 1, Sub-rule (2).

The further question for consideration is whether Defendant 1 was in a position to appear in this case by "a pleader duly instructed and able to answer all material questions relating to the suit" or by a "pleader accompanied by some person able to answer all such questions." Defendant 1 swears thus when examined in connection with this petition: (There was no convenience in the ship to send the vakalath and written statement.)

Although he has admitted that when Defendant 2 wrote to him about the case he asked her to file a written statement, that does not amount to an admission that he was in a position to instruct a pleader for filing a written statement and contesting the suit on his behalf. In the circumstances it cannot be said that Defendant 1 was in a position to appear in this case by a "pleader duly instructed and able to answer all material questions relating to the suit" or by a "pleader accompanied by some person able to answer all such questions." It has therefore to be held that Defendant 1 was prevented by sufficient cause from appearing in Court when the suit was called on for hearing.

The lower Court has directed Defendant 1 to deposit one half of the amount claimed in the plaint as a condition for setting aside the ''ex parte'' decree and it is represented that the amount has been deposited. In the circumstances I do not think that the order of the lower Court setting aside the ''ex parte'' decree calls for interference. The revision petition is, therefore, dismissed. There will be no order as to costs.