K.S. Rajendhiran vs Dr. M.R. Muralikrishnan and M. Arthi

B. Rajendran, J.—The Appellant has come forward with this appeal against the order dated 18.02.2010 dismissing his application No.

3447 of 2008 in C.S. No. 923 of 2002 which was filed for condoning the delay of 1281 days in setting aside the exparte decree dated

29.12.2004 passed in the suit.

According to the Appellant, he, along with the the first Respondent carried on partnership business for mining and quarrying granite blocks as

per the memorandum of understanding entered into between them as early as on 06.06.1996. The partnership business was stopped on and from

August 1996 due to misunderstanding between the partners. Thereafter, based on a complaint given by the first Respondent herein to the police

complaining non-payment of amount, the Appellant was arrested. During his police custody, at the instigation of the Respondents herein, the

signatures of the Appellant were obtained in blank papers and it was utilised by the Respondents to file the suit in C.S. No. 923 of 2002 against

the Appellant. The Appellant would further contend that he came to know about the exparte decree dated 29.12.2004 passed in the suit only

when he returned from Andhra Pradesh to Chennai and found that the summons in respect of EP No. 113 of 2006 in C.S. No. 923 of 2002 in

Proclamation case No. 1 of 2007 were affixed on his houe at No. 54, Gajapathy Street, Shenoy Nagar, Chennai - 600 030 on 28.04.2008.

Therefore, he came to know about the exparte decree dated 29.12.2004 passed in the suit only on 28.04.2008. As the suit itself was filed, based

on a fabricated agreement dated 23.01.2001, for recovery of a sum of Rs. 50,00,000/- together with interest at the rate of 24% per annum on Rs.

24,00,000/-, in which the exparte decree dated 29.12.2004 was passed without serving summons on him, the exparte decree is liable to be set

aside. Even though the plaint indicates the address as No. 54, Gajapathy Street, Shenoy Nagar, Chennai, he was not regularly residing there. Even

the substituted service ordered by the Court prior to granting the exparte decree was not a true and proper service. The suit summons have not

been served nor the summons in the Execution Petition served on him. Since there is no proper compliance to the provisions contained in Order v.

Rule 2 of Code of Civil Procedure, in respect of service of summons, he has filed the present application to set aside the exparte decree. As there

was a delay caused in filing the application to set aside the exparte decree dated 29.12.2004, inasmuch as he came to know about the exparte

decree only on 28.04.2008, the delay is justified and immediately on coming to know about the exparte decree on 28.04.2008, he filed the

application for setting aside the exparte decree.

The first Respondent vehemently resisted the application filed by the Appellant on the ground that the Appellant was not a business partner

along with the first Respondent and there is no partnership agreement between them. The Appellant received Rs. 17 lakhs by way of two cheques,

Rs. 2 lakhs in cash and another sum of Rs. 5 lakhs in cash separately. Ultimately, an agreement was entered into between the Appellant and the

first Respondent herein to that effect. After receiving Rs. 24 lakhs from the first Respondent, the Appellant, instead of utilising it for his business

needs spent the amount for his personal needs. In fact, the money was paid when the Appellant was a tenant under the Respondents herein and the

Appellant also agreed to pay the amount with interest. As the Appellant did not repay the amount within six months as agreed, the agreement dated

23.01.2001 was executed, whereby the Appellant agreed to pay the amount within six months. In spite of lapse of time, since the Appellant has

not come forward to pay the amount, the suit was filed. Originally the suit was filed along with an application for attachment and the summons in

the said application were duly served on the Appellant through court. On receipt of the summons, the Appellant appeared before the Court by

engaging a counsel and took time for filing counter on various dates. Subsequently, the counsel engaged by the Appellant reported no instructions

and only thereafter, the application was ordered exparte. Further, the notice was also taken by means of paper publication. Only thereafter, the suit

was decreed exparte on 29.12.2004. Therefore, the Appellant, having entered appearance through an advocate to contest the matter in so far as

the application for attachment before judgment is concerned, it is not open for the Appellant to contend that summons were not served on him and

therefore the exparte order in the suit has to be set aside. Once the Appellant entered appearance by engaging an advocate of his choice and also

filed Vakalath, the Vakalath has to be construed as an authorisation to the advocate to contest the suit and it cannot be restricted only for

defending the interlocutory application.

The first Respondent also would contend that in a corresponding criminal case in Crl.MP No. 1644 of2006 on the file of the learned Chief

Metropolitan Magistrate, Chennai, the Appellant himself filed an affidavit into the Court on 18.12.2006 through his advocate by stating that he had

knowledge about the exparte decree dated 29.12.2004 passed in C.S. No. 923 of 2002 and he is taking steps to contest the suit on merits.

Having filed such an affidavit even on 18.12.2006 in a corresponding criminal case, it is no longer open for the Appellant to aver in the application

to condone the delay in setting aside the exparte decree dated 29.12.2004 passed in C.S. No. 923 of 2002 that he had no knowledge about the

exparte decree and for the first time he came to know about the exparte decree only on 28.04.2008 when the summons were affixed on his

residence. The application No. 3447 of 2008 in C.S. No. 923 of 2002 to condone the delay in setting aside the exparte decree dated 29.12.2004

is devoid of any merits. The Appellant has not shown sufficient reason or cause to file the application. The application lacks merits.

We have heard the learned Senior counsel for the Appellant as well as the Learned Counsel for the Respondents. The learned Senior Counsel

appearing for the Appellant would mainly contend that Order v. Rule 2 of CPC contemplates service of summons along with plaint copy in a suit.

In this case, there is failure to comply with the provisions of Order v. Rule 2 of CPC inasmuch as the summons were not served along with the

plaint copy and therefore, the question of limitation does not arise The application to condone the delay in setting aside the exparte decree dated

29.12.2004 is maintainable as it was filed immediately from the date on which the Appellant came to knowledge about the exparte decree on

28.04.2008. The learned Senior Counsel for the Appellant also relied on Section 123 of the Limitation Act to demonstrate that the paper

publication effected is not proper. He would mainly contend that the Appellant came to know or knowledge about the exparte decree dated

29.12.2004 only for the first time on 28.04.2008 when the summons relating to the Execution Proceedings and Proclamation Case No. 1 of 2007

were affixed on his residence. The learned senior counsel also contends that earlier, the Appellant engaged an advocate to contest the interlocutory

application filed for attachment of the property. The vakalath signed by the Appellant was only in respect of that interlocutory application and not

for defending the suit.

We are not in agreement with such an argument of the learned Senior counsel for the Appellant. In fact, such an argument was made on behalf

of the Appellant before the learned single Judge and it was rejected by the learned single Judge as fallacious. First of all, an application for

attachment of immovable property before judgment cannot be filed without a suit. In fact, in the interlocutory application, the Appellant was cited

as Respondent/defendant. When a person signs a vakalath authorising his advocate to prosecute or defend a proceedings, particularly in a suit, it

can be taken as a Vakalath for prosecuting or contesting the main suit and it cannot be restricted to only the interlocutory application or

applications. Whenever an advocate files vakalath in a suit, the suit number will be mentioned and it cannot be said that the Vakalath only bears the

number of the interlocutory application alone. Such vakalath filed by the advocate will also be registered in the register maintained by the Registry.

Therefore, it cannot be said that the Vakalath was filed only in respect of the interlocutory application and not for contesting the suit. Such an

argument of the learned senior counsel for the Appellant, therefore, cannot be countenanced. If such an argument is entertained or accepted, it

would lead to drastic consequences in the lower judiciary in disposing of the cases.

The next argument of the learned Senior counsel for the Appellant is that the summons received by the Appellant, by means of affixure, do not

contain the enclosure along with it namely copy of the plaint, affidavit or petition. If a vakalath is filed on receipt of summons received without

enclosing the plaint copy by the other side in compliance with Order v. Rule 2 of Code of Civil Procedure, it is the usual practice for the advocate

who files vakalath on behalf of his client to get the plaint copy and other documents either from the Registry or from the other side. If we look into

the affidavit filed by the Appellant to condone the delay in setting aside the exparte decree dated 29.12.2004, nothing was mentioned as to

whether the copy of the plaint, affidavit or petition was not received by him.

The next point for consideration is whether the Appellant came to know about the exparte decree dt.29.12.2004 only on 28.04.2008, as

pleaded.

The Appellant appeared through his counsel to defend the interlocutory application filed along with the suit for attachment of the immovable

property before judgment. The Appellant took time to file his counter and time was also granted by this Court. Subsequently, without filing a

counter, the counsel engaged by the Appellant reported no instructions. Thereafter, the learned single Judge thought it fit to issue further summons

to the Appellant by means of paper publication in newspapers. In this context, if we look into Section 123 of the Limitation Act, it would only

indicate that any service, in so far as it relates to substituted service under Rule 20 of Order v. CPC shall not be deemed to be due service. This

will not apply to the facts of the case. Here, the Appellant had knowledge about the pendency of the suit and he was also duly served in the

interlocutory stage. The Appellant also filed vakalath through his advocate, sought time to file counter, but without filing counter, the advocate

engaged by the Appellant reported no instructions. Under those circumstances, it cannot be said that the service made by means of paper

publication is not an effective or due service. The substituted service was in addition to the actual earlier service and after the Appellant appeared

through an advocate.

Under Order v. Rule 2 of Code of Civil Procedure, no doubt, there is a mandatory rule that provides for service of summons by means of

substituted service i.e., paper publication. Merely because service was made by means of paper publication, it cannot be construed that service in

the normal mode was not proper or correct. What is contemplated in Section 213 of the Limitation Act is an application to set aside a decree

passed exparte or to re-hear an appeal decreed or heard exparte has to be filed within 30 days from the date of the decree or where the summons

or notice was not duly served, from the date of knowledge of the decree. Normally, the date of knowledge of filing or pendency of a case will be

from the date of original receipt of the summons in the suit. Even other wise, the appellant himself admitted that in the corresponding criminal case

in Crl.MP No. 1644 of 2006, he has filed an affidavit as early as on 18.12.2006 stating that ""he had knowledge about the exparte decree passed

against him on 29.12.2004 in C.S. No. 923 of 2002, since there is a threat to his life at Madras, he was residing at Hyderabad and therefore he

could not contest the suit on merits. Only when he came back to Chennai, he came to know about the exparte decree passed against him and

immediately, he filed the application to set aside the exparte decree."" The Appellant, having filed such an affidavit as early as on 08.12.2006 in the

criminal case stating that he knows the passing of the exparte decree and taking steps to contest the suit on merits, is estopped from pleading to the

contra. Therefore, it is clear that in the application to condone the delay in setting aside the exparte decree dated 29.12.2004 or in the affidavit

filed in support of the petition to condone the delay, the Appellant had deliberately omitted to mention the affidavit dated 08.12.2006 filed by him

in Crl.M.P. No. 1644 of 2006.

Even in the application filed in support of the petition to condone the delay of 1281 days, the Appellant has not assigned any convincing

reasons. There are three stages to be looked into in this case. In the first stage, when the suit was originally filed in the year 2002, the Appellant

entered appearance through an advocate and thereafter the advocate reported no instructions. Therefore, paper publication was ordered to be

effected and only thereafter, the exparte decree dated 29.12.2004 was passed in the suit. In the second stage, in the year 2006, in a

corresponding criminal case in Crl.MP No. 1644 of 2006, on 18.12.2006, the Appellant himself filed an affidavit stating that he is aware of the

exparte decree dated 29.12.2004 passed in C.S. No. 923 of 2002 and he is taking steps to contest the case on merits. In the third stage, the

Appellant alleged that he was served summons in Proclamation No. 1 of 2007 in E.P. No. 113 of 2006 in C.S. No. 923 of 2002 only by means

of affixture and he came to know about the pendency of the suit only on 28.04.2008. If these three stages are looked into, it is clear that the

Appellant had given contradictory statement, besides, these facts were not properly disclosed by the Appellant in the affidavit filed in support of

the application for condonation of delay of 1281 days in filing the application to set aside the exparte decree dated 29.12.2004. Therefore, the

argument advanced by the learned senior counsel for the Appellant that from the date of knowledge i.e., 28.04.2008 the Appellant had filed the

application to set aside the exparte decree dated 29.12.2004 and therefore it is maintainable is liable to be rejected. Further, even after the

affixture on 28.04.2008, the application to set aside the exparte decree was not filed immediately and it was filed only on 3rd July 2008, which is

also beyond 30 days from 28.04.2008 for which also there is no explanation offered by the Appellant.

As rightly pointed out by the learned single judge, the affidavit sworn by the Appellant in respect of the application u/s 5 of the Limitation Act is

devoid of truth and it was deliberately made for the purpose of this application and it lacks bonafides. We do not find any reason to interfere with

such a finding rendered by the learned single Judge. As we also find that there is no convincing reason assigned by the Appellant either to condone

the delay or to set aside the exparte decree dated 29.12.2004, we are not inclined to interfere with the well considered order passed by the

learned single Judge dismissing the application for condonation of delay.

In this connection, the learned senior counsel for the Appellant would vehemently contend that the suit, at the threshold, has to be rejected as it

is barred by limitation. The suit was decreed exparte and merely because there is a delay in setting the exparte decree, the Appellant should not be

curtailed or prevented from defending the vexatious suit and therefore, in order to meet the ends of justice, the application to condone the delay in

setting aside the exparte decree dated 29.12.2004 has to be allowed by setting aside the order passed by the learned single Judge. In this

connection, the learned Senior Counsel for the Appellant relied on the decision reported in Collector, Land Acquisition, Anantnag and Another Vs.

Mst. Katiji and Others, to contend that the delay in filing the application to set aside the exparte decree has to be set aside as there is a reasonable

ground made out by the Appellant that the suit itself is barred by limitation. The learned senior counsel for the Appellant also pointed out para-10

of the plaint to contend that the last payment was made on 22.11.1996, whereas, the agreement, based on which the suit was filed, was dated

23.01.2001 and therefore, there cannot be an acknowledgment of liability as contemplated u/s 18 of the Limitation Act or effect of payment on

account of such debt as provided u/s 19 of the Limitation Act extending the period of limitation beyond the statutory period. According to the

learned senior counsel for the Appellant, when the last payment was made only in the year 1996, even though an alleged agreement was entered

into between the parties on 23.01.2001, it will not extend the period of limitation and therefore, the suit ought to have been rejected at the

threshold. In any event, the learned Senior counsel submitted that the Appellant has to be given a chance to defend the vexatious suit so that the

adjudication will be on merits.

We are not in agreement with such an argument advanced by the learned Senior Counsel for the Appellant. If really the Appellant was aware

that the suit has to be dismissed at the threshold as it was vexatious, at the earliest point of time, even in the year 2002 when he engaged an

advocate to defend the suit, he could have raised such a plea by filing a counter or written statement, but it was not done. The Appellant simply

allowed the interlocutory application as well as the suit to be allowed to be decreed exparte by not furnishing any intimation to his counsel. As

mentioned above, the Appellant filed an affidavit on 18.12.2006 in a criminal proceedings instituted against him in which he admitted that he had

knowledge about the exparte decree passed in the suit and taking steps to defend the suit on merits, but even thereafter, the Appellant failed to

take any steps and only after two years i.e., on 03.07.2008, the Appellant filed the present application No. 3447 of 2008 to set aside the exparte

decree. In this context, it has to be pointed out that u/s 25(3) of the Indian Contract Act, an agreement can be entered into even to pay a time

barred debt. Therefore also, the argument of the counsel for the Appellant cannot be accepted. The suit itself was filed in the year 2002, on the

basis of agreement dated 23.01.2001 and at this stage, it is not open to the Appellant to contend that the suit is barred by limitation. All is not well

with the Appellant as he failed to approach the Court in time and with clean hands. The Appellant, having engaged an advocate at the earliest point

of time is estopped from contending that the suit is vexatious or he was not afforded reasonable opportunity to defend the suit on merits. Therefore,

we are not inclined to decide the merits of the case.

In the context, we are fotified by the decision of the Division Bench of this Court reported in (Sundar Gnanaoliva rep. By power of attorney

agent Mr. Rukmini v. Rajendran Gnanavolivu rep. By power of Attorney Agent Velina Gnanavolivu) 2003 1 Law Weekly 585, wherein it was

held that when the applicant has not come to the Court with clean hands and the averments made in the affidavit are totally devoid of truth and

lacking bonafide, definitely such a case is not an exceptional case warranting a liberal approach in condoning the delay or showing any leniency. In

the light of the said decision of the Division Bench of this Court, inasmuch as the Appellant had not approached this Court with clean hands and

suppressed many material particulars, we are not inclined to adopt a liberal approach in affording another opportunity to the Appellant to contest

the suit or to condone the inordinate delay of 1281 days in filing the applicant to set aside the exparte decree.

It is well settled that in dealing an application to set aside the exparte decree or condoning the delay in setting aside an exparte decree, the

Court will not deal with the merits of the case. Yet, the learned Senior counsel for the Appellant vehemently contended to consider the merits of

the case mainly on the question of limitation. We do not want to express any opinion on the merits of the suit. Moreover, the correctness or

otherwise of the exparte decree passed in the suit is not the subject matter of this appeal and what is questioned in this appeal is the order passed

by the learned single Judge dismissing the application filed by the Appellant to condone the delay of 1261 days to set aside the exparte decree

dated 29.12.2004 in C.S. No. 923 of 2002.

The learned senior counsel for the Appellant relied on the decision reported in Nahar Enterprises Vs. Hyderabad Allwyn Ltd. and Another, to

contend that as per this decision, when summons have not been properly served, as contemplated under Order V Rule 2 of Code of Civil

Procedure, then the question of limitation for setting aside the exparte decree would commence only from the date when the Appellant had

knowledge about the exparte decree. As the summons were not served to the Appellant together with a copy of the plaint, as contemplated under

Order v. Rule 2 of Code of Civil Procedure, such a service is deemed to be an insufficient service and consequently Article 123 of the Limitation

Act will be attracted and therefore, the Appellant is legally entitled to seek for condonation of delay.

When we look into the aforesaid decision of the Honourable Supreme Court, it is evident that the Respondent therein had filed the suit for

recovery of a sum of Rs. 1,87,904.62 with future interest at the rate of 18.5% per annum against the Appellant. In that suit summons were not

served and therefore the Court below adjourned the matter to 02.12.1988. Subsequently, summons were served on the Appellant on 14.10.1988,

but according to the Appellant, a copy of the plaint was not served on him along with the summon. Therefore, the Appellant sent a telegram on

17.10.1988 to the Court below, but the same was not responded to by the court. The court below, without issuing any further summons, fixed

another date for the appearance of the Appellant and having found that the Appellant was absent on that day, fixed another date for exparte

hearing on 13.12.1988. On 13.12.1988, the suit was decreed with costs. Based on such decree, an Execution Petition was filed and the notice in

the execution petition was served on the Appellant on 02.12.1991 and only then the Appellant came to know about the passing of the exparte

decree. Immediately, the Appellant filed an application to set aside the exparte decree on 13.12.1991 namely within 30 days from the date of

knowledge of the exparte decree by virtue of the notice served in the execution petition. Such an application was dismissed by the trial court on the

ground that non-receipt of the copy of the plaint along with the summons cannot be a ground to set aside the exparte decree and since there was

no report about the service of summons on 10.10.1988, there was no necessity to serve fresh summons. The Court below also found that the

exparte decree was passed on 13.12.1988 and an application for setting aside the same having been filed on 13.12.1991, the same is barred by

limitation. Aggrieved by the same, the Appellant preferred an appeal before the High Court and the same was dismissed. In the SLP filed before

the Honourable Supreme Court, the Learned Counsel for the Appellant contended that the Appellant had knowledge about the exparte decree for

the first time only in the year 1991 when summons in the execution petition was served and within 30 days thereof he filed the application to set

aside the decree and it was in time. Furthermore, as per order v. Rule 2 of CPC the copy of the plaint was not served on the Appellant and in the

absence of the same, he could not enter appearance and file his written statement. In that context, the Honourable Supreme Court held that earlier,

the notice was not served on the Appellant before the date fixed for hearing and therefore, it was held that the courts below have committed

illegality in dismissing the application to set aside the exparte decree. Para-12 of the judgment of the Supreme Court will throw much light on this

aspect which is extracted hereunder:

The third ground on which the learned trial Judge dismissed the application for setting aside the exparte decree was that it was barred by

limitation. The said ground in our opinion, is also without substance. The summons had not been duly served upon the Appellant inasmuch as the

provisions of Order 5 Rule 2 of CPC or provisions of Order 9 Rule 6 (1) (c) had not been complied with. In that view, the second part of Article

123, in terms whereof an applicant would be deemed to have knowledge of passing of the said exparte decree would be the date from which the

limitation will begin to run, would be attracted in the instant case and not the first part thereof..

It is very clear from the decision of the Honourable Supreme Court that the point arise for consideration is whether the date of knowledge

pleaded by the Appellant therein is supported by any material particulars. In that case before the Honourable Supreme Court, the Appellant

received summons only in the Execution Petition for the first time and he also filed an application within 30 days from the date of receipt of

summons to set aside the exparte decree. Therefore, the Honourable Supreme Court interfered and allowed the appeal. The facts of that case are

totally different and distinguishable when compared with the facts of the case on hand. In this case, the Appellant entered appearance through an

advocate after receipt of summon in the interlocutory application in the suit, the advocate reported no instruction and thereafter the suit was

decreed exparte, in a parallel criminal proceedings initiated against the Appellant, he filed an affidavit dated on 08.12.2006 pleading knowledge

about the exparte decree passed in the suit, therefore, the application to set aside the exparte decree was filed beyond 30 days after the alleged

dage of knowledge and this decision of the Honourable Supreme Court will not be of any help to the Appellant.

In the result, the original side appeal is dismissed confirming the order dated 18.02.2010 passed by the learned single Judge in Application No.

3447 of 2008 in C.S. No. 923 of 2002. No costs.