Karipal Joseph vs Karipal Karmaly

B.N. Patnaik, J.—This revision petition, by the plaintiff in O.S. No. 225 of 1983 on the file of the Munsiffs Court, Hosdurg, has been filed against the common order dated 30-10-1993 passed in LA. Nos. 631 and 632 of 1991 by which the ex parte decree passed against the respondent/defendant was set aside by condoning the delay in filing the petition under order 9 rule 13 C.P.C. Plaintiff is the husband of the defendant. He filed the suit on 19.9.1983 for a declaration that two items of properties in the plaint schedule and standing in the name of the defendant have been purchased benami in her name. The defendant was duly served with summons. Shri P. Appukuttan, Advocate was engaged by her. She filed the written statement on 20-6-1984. Issues were framed in due course. But, on 25.7.1985, when the suit was called on for hearing, counsel for the defendant reported ''no instructions''. The suit was then heard ex parte and ex parte decree was passed on that day.

On 3-6-1991, the defendant filed a petition under order 9 rule 13 C.P.C. to set aside the ex parte decree. It was registered as LA. No. 632 of 1991. On the same day, she also filed a petition u/s 5 of the Limitation Act to condone the delay in filing the petition to set aside the ex parte decree. The petition for condonation of delay has been registered as I.A. No 631 of 1991.

In the petition filed u/s 5 of the Limitation Act (I.A. 631/91), it is stated that the defendant was not served with any summons in the suit. The decree was obtained fraudulently with the intention of depriving her of valuable property. The delay was due to the fact that she was completely in dark about the ex parte decree. There was no negligence or laches on her part. She will be put to irreparable loss and injury, if the ex parte decree is not set aside by condoning the delay.

In the petition filed under Order 9 Rule 13 C.P.C. (LA. 632/91), it is stated by her that she came to know of the ex parte decree for the first time on 28.5.1991 when a Police Constable came to her house for investigation of a complaint filed by her husband against her. The plaintiff obtained a fraudulent and collusive decree in the suit depriving her of the property which was purchased by her in her name. The plaintiff and herself are living in the same house even now. She had absolutely no knowledge of the suit. She denies to have engaged any advocate. She also states that she has never signed any vakalath or any other papers. The entire suit was conducted by the plaintiff with a view to defraud and deprive her of the valuable rights in the property. On 28.5.1991, the plaintiff also told her that he has obtained a decree and that she is not entitled to remain in possession of the property.

The plaintiff-petitioner in his counter-affidavit denied the allegation of fraud and illusion and the alleged non-service of summons in the suit. He has further contended that the defendant-respondent failed to show sufficient cause for condoning the delay in filing the petition under order 9 rule 13 C.P.C, or that she was prevented by any sufficient cause from appearing when the suit was called on for hearing.

Learned Munsiff heard both the I.A.s together and passed a composite order allowing the same, He held that the decree passed in the suit on 25.7.1985 is an ex parte decree. Even though there is considerable delay of nearly six years in filing the petition under order 9 rule 13 C.P.C. and the reasons put forward by her are not satisfactory, it has to be liberally construed and the delay deserves to be condoned. It has been further held by him that although an ex parte decree alleged to have been fraudulently obtained cannot be set aside under order 9 rule 13 C.P.C, yet the defendant having come forward with an application seeking for an opportunity to contest the suit, it is necessary in the interest of justice to give a chance for contesting the suit instead of driving her to file a separate suit for setting aside the decree.

Learned Counsel for the petitioner has challenged the legality of the aforesaid findings of the learned Munsiff.

Article 123 of the Limitation Act, 1963 prescribes the period of limitations to set aside a decree passed ex parte. It reads as follows:

Description of suit

Period of limitation

Time from which period begins to run

To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parts. Explanation: For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure,1908 (5 of 1908), shall not be due service

Thirty days

The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.

Section 5 of the Limitation Act lays down inter alia that any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within such period.

The respondent/defendant has contended that until she was informed by a police constable on 28.5.1991 she had no knowledge of the ex parte decree. Except her sole testimony there is no corroborative evidence in support of such a plea. Admittedly, she has been living with her husband/plaintiff through out. There is nothing on record to show that she had no scope or any opportunity to know about it until after the lapse of a period of six years from the date of decree.

Her next contention is that the summons or notice in the suit was not duly served on her for which she had no opportunity to know about the ex parte decree. An idential plea has also been taken in the petition under order 9 rule 13 C.P.C.

Order 9 rule 13 C.P.C. lays down inter alia that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

The term "summons" in the third column of Article 123 refers to the summons to be served upon the defendant for the first hearing of the suit. If the summons for the first hearing is duly served upon the defendant, it is not necessary for the court to serve him with notice of subsequent dates. A summons is said to have been "duly served" if it was served in such a manner that the defendant had knowledge of the suit or that the Court may presume that he had such knowledge.

There is no dispute that a written statement was filed in this case on her behalf and an advocate was also engaged to contest the suit. Over and above this, Ext. C1 which is a report submitted by the Finger Print Expert shows that the left thumb impression appearing on the suit summons and the admitted thumb impression of the defendant/respondent are of one and the same person. There is no evidence to show that the opinion given in Ext. C1 is incorrect or otherwise unreliable.

One of the other contentions of the defendant/respondent is that her husband in collusion with some other persons managed to file a written statement or engaged a lawyer on her behalf. But such facts are easier said than proved. There is not an iota of evidence from any independent source in support of such a plea. It is not safe to rely upon the uncorroborated statement of an interested party in such matters. She has given her left thumb impression in token of receipt of summons which fact being not controverted, there is no reason to hold that summons in the suit was not duly served on her. The further fact that she had entered appearance in the suit negatives the plea that she was not aware of the suit filed against her.

The power of court to restore a suit is circumscribed and limited by the express provision of Order 9 Rule 13 C.P.C. On no ground other than those enumerated in 0.9 R. 13 C.P.C, a court can set aside an ex parte decree. In this case it has been found that the plea that summons was not duly served on the respondent/defendant is not true. There is no reliable corroborative evidence to show that she was prevented by any sufficient cause from appearing when the suit was called on for hearing.

Learned Counsel for the respondent by relying on the decisions of the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, has contended that a liberal view may be taken in this case for condoning the delay in filing a petition under 0.9 R. 13 C.P.C. The Supreme Court has laid down that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. The litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. When substantial justice and technical consideration are pitted against, 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 a non-deliberate delay. 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 bearing the parties.

In both the aforesaid Supreme Court cases, it was found that there was no deliberate delay and the cause shown for filing the petition late was held to be sufficient. But, in this case, the falsity of the plea that she was not served with summons in the suit and absence of any reliable evidence to the effect that she had no means to know about the ex parte decree while living with the plaintiff all along as stated in para 2 of her petition in I.A. 632/91, for nearly six years are by themselves sufficient to hold that she committed deliberate delay-in filing the petition under order 9 rule 13 C.P.C.

Learned Counsel for the respondent by relying on the decision in Shanti Prasad Gupta Vs . Deputy Director of Consolidation, Camp at Meerut and Others has contended that the learned Munsiff having condoned the delay in exercise of his discretion, this Court in exercise of the revisional jurisdiction may not interfere with it. It is laid down in the said decision that whether or not there is sufficient cause for condonation of delay, is a question of fact dependent upon the facts and circumstances of a particular case. When an order has been made u/s 5, Limitation Act by the lower court in the exercise of its discretion allowing or refusing an application to extend time, it cannot be interfered with in revision, unless the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence.

If the finding of the learned Munsiff is contrary to law, there is no bar for a revisional court to interfere with it. Learned Munsiff gave inconsistent findings in both the I.As. He found that there was no sufficient cause to condone the delay; but condoned the delay by taking the so called "liberal view". Again he has found that although an ex parte decree alleged to have been fraudulently obtained cannot be set aside under Order 9 Rule 13 C.P.C, yet it is necessary in the interest of justice to set it aside in order to save the defendant/respondent from the ordeal of filing a fresh suit. It is pertinent to mention here that even if an ex parte decree is obtained by the plaintiff fraudulently the same cannot be set aside in a proceeding under Order 9 Rule 13 C.P.C. because the rule does not envisage for an enquiry to decide such a question. The only course open to a party in such circumstances is to file a suit to get such a decree set aside. Learned Munsiff has acted contrary to law in setting aside the ex parte decree alleged to have been obtained fraudulently solely on the ground that she should not be driven to file a fresh suit. this Court in exercise of the revisional jurisdiction can, therefore, set aside such an order. For the reasons stated above, the impugned order of the learned Munsiff cannot be sustained in law and is, therefore, set aside.

The revision is allowed. No costs.