M. Pattammal alias Murugayee vs R. Velan Jagannathan and Others

Bellie, J.—Of these two civil revision petitions, C.R.P. 1682 of 1982 has been filed against an order passed allowing a petition for setting aside an ex parte order, and C.R.P. 1970 of 1982 has been filed against an order passed condoning a delay of 75 days in filing the petition for setting aside the ex-parte order. The impugned orders have been passed by the Second Additional Subordinate Judge. Pondicherry, respectively in I.A. 27 of 1980 and I.A. 26 of 1980 in O.S. 187 of 1977. The petitioner in these two petitions i.e. I.A. 27 of 1980 and I.A. 26 of 1980 is the second defendant in the suit. The suit is for partition of three items of properties, viz., A, B and C schedules. The plaintiff is the sister. First and second defendants are her brothers and third defendant is her sister. The case of the petitioner in I.A. 27 of 1980 is that in the suit no summons were served on him and the plaintiff in collusion with the first and third defendants has obtained an ex parte decree against him. He would submit that the B schedule property which is a house belonged to his father and he (father) bequeathed under a Will a life estate to the petitioner and the remainder to his children. He (petitioner) let out the property and was receiving rent. He was living in Bangalore. As the tenants stopped giving rent he came to Pondicherry for collecting rents on 21.12.1979 and then he was informed that they were withholding the rent because of an order of injunction by the Court directing them not to give rent to him, and it was only then he came to know that the plaintiff had filed a suit and in that suit an injunction against the tenants had been obtained and an ex-parte decree had been obtained against him on 21.9.1979. He was not served with any summons either in the suit or in the injunction petition. On verification he found that the plaintiff hid wantonly caused summons to be issued giving a wrong address in Pondicherry and therefore the summons were returned as unserved, and then the plaintiff without taking steps for fresh summons had sought for substituted service by publication in the daily. Dinathanthi which has absolutely no circulation in Karnataka. Even in that publication the correct address of the petitioner has not been given. The second defendant was not aware of the publication at all. The plaintiff has played a fraud against the second defendant. Therefore, the ex-parte order has to be set aside.

In the other petition filed by him relating to C.R.P. 1970 of 1982, i.e., I.A. 26 of 1980 the second defendant has stated that though he has filed a petition for setting aside the ex parte decree against him in time i.e., within 30 days from the date of knowledge, by way of abundant caution he has riled this petition for condoning the delay of 75 days if it is to be held that the petitioner should have filed the petition within 30 days from the date of decree.

In the counter filed by the plaintiff it is stated that the second defendant had knowledge of the entire proceedings and he has not shown sufficient cause for condoning the delay.

The trial Court considering both the matters together allowed both the petitions on the same day. As against this the plaintiff has preferred these two civil revision petitions.

If it is true that summons of the suit has not been duly served on the petitioner, second defendant, then as per Art. 123 of the Limitation Act, the petition for setting aside the ex-parte decree can be filed within 30 days from the date of the second defendant''s knowledge of the decree and therefore, the petition filed will be in time. Now, it is not in dispute that the suit summons has been addressed to an address in Pondicherry as address of the second defendant and that summons has been returned as unserved. According to the second defendant, he was living in Bangalore and even in the summons which has been taken to Pondicherry his correct address there has not been given but a wrong address has been given and therefore the summons was returned. Thereafter straightaway substituted service by publication has been obtained but the Dhinathanthi wherein the publication was made had no circulation in Karnataka. Therefore he had no knowledge of the suit at all and an ex-parte decree was passed. Now, it is not in dispute that the summons taken to an address in Pondicherry has been returned as unserved. The publication has been made to Bangalore address but it is not known why summons has not been sent to Bangalore address before publication. In the counter filed by the plaintiff it is just stated that all steps had been taken to serve summons on the second defendant and nothing more is stated. The learned trial Judge in his order has stated that the publication has been made in Dhinathanthi of Vellore edition and this paper will not go to Bangalore. Whether it is correct or not, even if the publication has circulation in Bangalore, it cannot be stated that the second respondent would have seen it. Therefore, there is nothing on the basis of which we can definitely say that the second defendant had notice of the suit.

However. Mr. K.S. Mahalingam, learned counsel for the plaintiff, contends that when substituted service is made by publication in a paper it must be taken as summons duly served and therefore it is not open to the second defendant to say that he had no notice of the suit. In this connection, the learned counsel reads out Order V R.20 (2). This sub rule reads thus:-

(2) Effect of substituted service--Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally..

This rule only means that if the service substituted had its desired effect, i.e. notice of the suit on the defendant, then that effect would amount to service on the defendant personally. Therefore if the service substituted did not have the effect of the defendant having notice of the suit it will not have the effect of service on the defendant personally. Therefore if in spite of substituted service ordered by the court the defendant did not have the knowledge of the suit the substituted service cannot be taken to be service on the defendant personally. This means that when the defendant states that the substituted service has no effect of notice to him of the suit this has to be considered and if the Court comes to the conclusion on the evidence adduced in that behalf or otherwise that the substituted service had no effect of bringing to the knowledge of the defendant of the suit, then the time limit for setting aside the ex-parte decree shall be computed from the date of his knowledge and not the date of a decree. Therefore on account of Order V R.20 (2) it cannot be said that substituted service would have the effect of service of summons on the defendant and therefore it is not open to him to say that he had no knowledge of the suit. But when the substituted service is taken as ordered by the Court, then even if the defendant does not appear on the hearing date of the suit, the Court will further proceed with the matter on the assumption that by the substituted service the defendant had knowledge of the suit but he did not appear. This has to be done to proceed with the matter further without keeping it standstill. In the old Code of Civil Procedure, the present sub-R-(2) in Order V R.20 was as a Proviso to Order V R.20 and interpreting that proviso the Allahabad High Court in Gobardhan Ram Bisheshar Ram Vs. Banarsi Ram and Others, has stated in paragraph 12 thus.-

True, substituted service is deemed to be a good service but for the purpose of O.9 R.13, the court can always go into the question whether the service had been effected or not.

However, it may be, this question has been statutorily made clear now under an Explanation to Art. 123 of the Limitation Act, 1963. In this Article the time limit of 30 days has been prescribed to set aside a decree passed ex parte. But as regards the time from which the period begins to run it is stated--

The date of the decree or where the summons or notice was no duly served when the applicant had knowledge of the decree.

Then an explanation below that reads--

Explanation: For the purpose of this article, substituted service under Rule 20 of Order V of the CPC 1908 (5 of 1908) shall not be deemed to be due service.

Under O.11, R.13, the defendant may apply to the Court for setting aside an ex-parte decree on the ground that the summons was not duly served on him. Therefore if the defendant shows that in spite of substituted service he had no knowledge of the suit on the date of hearing the ex-parte decree shall be set aside. This will be so irrespective of any long lapse of time after the ex-parte decree was passed. A Division Bench of this Court in Ramalingam v. Bhagwandas Mahesh Kumar Maheswari 1984-1 M.L.J. 285, Hindu undivided family by Kartha Bhagwandas, had an occasion to consider the scope of Order V R.20 (2). Civil Procedure Code, and the Explanation to Art. 123 of the Limitation Act and has stated that--

It is true that O.5 R.20 (2) of the CPC states that service substituted by order of court shall be as effective as if it had been made on the defendant personally. This is however now subject to the present Explanation to Art.123 of the Limitation Act, where an application to set aside an ex-parte decree is made substituted service under O.5 R.20 of the Code shall be deemed to be due service.

But I do not think that there is any question of Order V rule 20(2) of the CPC being subject to the explanation of Art. 123 of the Limitation Act. As stated above, the true position arising out of substituted service in the context of Order V rule 20(2) of CPC has now been explained in the Limitation Act. However it may be, in that decision also it has been held that substituted service cannot be considered as due service if the defendant files an application under Order IX rule 13, C.P.C. stating that he has not been duly served with summons.

In view of all these, it cannot be held that the defendant had notice of suit on the date of hearing, and it must be held that he had come to know of the suit only on 21.12.1979 when he went to Pondicherry to collect rents from his tenants as stated by him. The petition under Order IX rule 13, having been filed on 7.1.1980 it is well within time. Therefore, in fact, no question of condoning the delay arises, but, however, the lower Court has allowed the petition purporting to condone delay. It is beyond doubt that the defendant has not been duly served with summons and he is entitled to get the decree set aside. However, it is the specific case of the second defendant that his dispute is with regard to B schedule property alone and not with regard to other schedules. In fact, the trial Court has decreed the suit only with regard to B schedule and dismissed the suit with regard to A and C schedule properties. As against the dismissal regarding A schedule property the plaintiff has filed an appeal to this Court and that appeal A.S. No. 930 of 1980 has been allowed. In these circumstances it is just and proper to set aside the decree passed by the trial Court, in respect of B schedule property alone. Accordingly, the order of the trial Court setting aside the decree is modified limiting it to B schedule property only i.e. regarding A schedule properties the decree passed by this court will stand. These revision petitions are accordingly disposed of. There will be no order as to costs.