Nachy Aiias Nachi vs Kangayal

Swamikkannu, J.—This is a revision Petition filed against the Order, dated 22nd June. 1979 in Interlocutory Application No. 36 of 1979 in Original Suit No. 97 of 1978 dismissing with costs the Petition filed by the Defendant u/s 5 of the Limitation Act to condone the delay of 104 days in filing the Petition to set aside the expert decree.

It is common ground that on 27th March, 1978 Original Suit No. 97 of 1973 was instituted for recovery of possession and mesne profits. The expert decree was passed on 21st August, 1978. The Order made in Interlocutory Application No. 36 of 1979 by the learned District Munsiff, Sirkali is the subject matter of this civil revision Petition which was filed on 3rd January, 1979 to excuse the delay of 104 days for the reasons stated in the affidavit sworn to by the Defendant in the suit. In this regard, the learned Counsel for the revision Petitioner points out that the trial Court is not correct in having observed in paragraph 4 of the Order that in chief examination P.W. 1 had stated that he came to know of the case only in the month of Karthigai last 10th day. In arriving at a decision, it is not quite in accordance with the principle contemplated u/s 5 of the Limitation Act, because the learned Counsel for the Petitioner submits that Karthigai last 10th day mentioned in paragraph 4 by the learned District Munsif in his Order in Interlocutory Application No. 36 of 1979 is equivalent to 26th November, 1978. The date of the decree is 21st August, 1978. The learned Counsel for the Petitioner also points out that at the end of the paragraph 4, the learned District Munsif has observed as follows:

All these go to show that the Petitioner must have known about the suit even at the time of the summons were sent to him.

The learned Counsel would contend that the above conclusion arrived at by the trial Court is without any evidence available on record and this is nothing but surmise indulged in by the trial Court while disposing of an interlocutory application wherein the lower Court had not dealt with the averments made in the counter filed on behalf of the Plaintiff-Respondent to the Petition interlocutory Application No 36 of 1979.

On the other hand, the learned Counsel for the Respondent to this position reads the contents of the provision u/s 5 of the Limitation Act and refers to the Third Division-Application and Part-1-Application in specified cases occurring under the Schedule of the Limitation Act, Article 123, which reads as follows:

To set aside a decree passed ex parte or to rehear an appeal decreed or heard expert-30 days-The date of the decree or where summons or notice was not duly served, when the applicant had knowledge of the decree.

By referring to the above provision, the learned Counsel contends that the objection raised in the counter had been properly dealt with by the lower Court and as such, there is absolutely no ground for interference by this Court so far as this Order made under the provision of Section 115 Code of Civil Procedure.

The point for consideration is whether the provision of Section 5 of the limitation Act has been properly appreciated and understood in applying the facts put forward by the aggrieved Defendant as the Petitioner in Interlocutory Application No. 36 of 1979 and the delay explained for condensation of 104 days is justified or not and whether the contention raised in the counter filed by the Plaintiff, Respondent to this Petition was also properly taken into consideration in the light of the contents of Article 123 occurring under the Third Division-application Part I Application-specified cases, so far as the ex parte decree and the setting aside of the same are concerned.

It is stated in the affidavit filed by the Defendant in support of this Petition for condoning the delay that the Plaintiff filed the suit for recovery of possession of the suit property, that the properly belonged to one Swaminatha Pillai of Radhanallur and that he is cultivating the lands along with the adjoining property belonging to him, that he is a poor agriculturist (SIC) out his livelihood from the yield of the suit property and from work, that he does not now 10 read and write, that he did not receive any suit summons, that he had raised crops and had harvested that he had now prepared the land for cultivation, that the lands were under his cultivation for the past so many years, that the ownership of the Plaintiff is disputed by him (Defendant) and that even if the Plaintiff is the owner, she could become the owner only subject to the tenancy right of the Defendant-Petitioner.

Further it is stated that he was not served with any suit summons. It is also stated in the affidavit sworn to by the Defendant-Petitioner that he was not aware of the suit and that he is a cultivating tenant and the suit will not lie against him, that only on receiving notice of execution, he came to know of the decree passed against him on 21st August 1978, and that if the ex parte decree is executed, he would be put to irreparable loss an hardship which cannot be compensated.

On the other hand in the counter that had been filed by the Plaintiff in this Interlocutory Application No. 36 of 1979 in Original Suit No. 97 of 1978, which is not an affidavit but only styled as a memo of objection, the following contentions have been raised:

All the allegations made in the affidavit in support of the Petitioner are all wrong and false and they are specifically denied.

The Plaintiff sent several suit summons to the Defendant and the want only evaded summons. Finally the Plaintiff published in the News Paper and then alone the suit was decreed. The Petitioner was aware of all these summons and the publications. He is negligent and also want only stayed away from the Court.

It is absolutely false and wrong to say that the Petitioner is a cultivating tenant in respect of the trespassed portion. The Defendant/Petitioner has no right whatsoever much less cultivating tenant''s right over the suit property.

The suit was decreed on 21st August, 1978 and immediately the Plaintiff informed the Defendant. The Defendant in turn informed the Plaintiff that his landlord and his relation an advocate of Mayuram will take care of the matter, and only on their advise that he has evaded all the summons came from the Court. Therefore, it is self evident that the Defendant is aware of the proceedings even from the time before the matter was decreed.

The delay in filing the Petition for setting aside the expert decree is not entertain able. Each day''s delay will have to be explained. The affidavit in support of the Petition to condone delay in very vague and devoid of merits.

There is no proper and valid reason either to condone delay or to set aside the expert decree passed against the Defendant. These Petitions are filed only to harass the Plaintiff and to delay the execution.

Therefore these Petitions may kindly be dismissed and cost may be awarded to the Plaintiff.

The above has been extracted in full in Order to appreciate the contentions raised before this Court which, is untenable and unsustainable. In view of the fact that none of the points raised on the basis of the facts confronting us has been properly dealt with nor answered properly the only question that arises for consideration in this Petition is whether the 104 days delay that had occurred in this connection has been properly explained.

In this view, it is relevant to note that the reason given for the delay was that the Defendant came to know of the decree passed against him only on 21st August 1978. As a matter of fact, in paragraph 4 of the memo of objection filed on behalf of the Plaintiff and signed by the learned Counsel appearing in the lower Court on behalf of the Plaintiff shows that the suit was decreed on 21st August 1978 and immediately the Plaintiff informed the Defendant about the same.

It is stated in paragraph 4 of the memo of objection that the Defendant in turn informed the Plaintiff that his landlord and his advocate of Mayuram would take care of the matter and that only on their advise, he had evaded all the summons came from the Court.

It is really surprising that such an averment finds a place in a memo of objection signed by the advocate alone. Nothing has been spoken to by the so called aggrieved Plaintiff and he has not even cared to file a fresh affidavit by way of counter. Though it is one which in always expected. that it is only on instructions that a memo of objection is filed by way of counter to an affidavit that is filed in support of a Petition in v case of this nature, yet it is something (SIC) that such kind of explanation which ought to have (SIC) from the aggrieved party, is incorporated in a document that had been filed as a memo of objection signed exclusively and solitarily by the advocate appearing on behalf of the Plaintiff. It is contended on behalf of the Plaintiff Respondent that though this so called memo of objection had been signed by the learned advocate appearing on behalf of the Plaintiff-Respondent heroin the same has to be constructed as a counter for the affidavit that has been sworn to by the Defendant-Petitioner accompanying Interlocutory Application No. 36 of 1979. As already stated the point for consideration is, whether the provisions of Order V, Rule 19 and 20 of the CPC have been complied with or whether the lower Court has erred in taking the point for determination as one of knowledge of the suit instead of knowledge of the decree.

Order V Rule 19 of the CPC reads as follows:

Where a summons is returned under Rule 17, the Court shall, if the return under that Rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may take such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such services as it thinks fit.

A reading or Rule 19 of Order V shows that where a summons is returned under Rule 17, the Court shall, if the return under that Rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or (SIC) him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served Order such service as it thinks fit.

Rule 17 of Order V of the Code of CPC reads as follows:

Where the Defendant or his agent or such other person aforesaid refused to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the Defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the same and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

Order V Rule 20 of the CPC which deals about the substituted service reads as follows:

(1) Where the Court is satisfied that there is reason to believe that the Defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall Order the summons to be served by affixing a copy there is some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the Defendant is known to have last resided or carried on business or personally worked for gain, or in such other manners as the Court thinks fit.

(1-A) Whose the Court acting under Sub Rule (1) Orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the Defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain (Added by Act 104 of 1976).

(2) Service substituted by Order of the Court shall be as effectual as if it had been made on the Defendant personally.

(3) Where service is substituted by Order of the Court, the Court shall fix such time for the appearance of the Defendant as the case may require.

In the instant case the application to condone the delay in filling the application to set aside the expert decree was only on 3rd January 1979, i.e., about 104 days subsequent to the date of decree of the lower Court.

Date of knowledge contemplated in Article 133 of the Limitation Act, 1963 (Act XXXVI of 1963) is relied on for the purpose of showing that it is only from the knowledge of the day on which the judgment had been pronounced, by the aggrieved party. It is contended on behalf of the Appellant herein that 10th Karthigai occurring in the judgment of the lower Court is equivalent to 26th November 1978 and it is only from that date the limitation period has to be computed. I am unable to uphold this contention because the date of knowledge as contemplated by Order V, Rule 19 or Order V Rule 20 of the CPC is date of the pronouncement of the Order concerned in the open Court. It is common knowledge as well as under the provisions of the procedural law of the land that a judgment can be delivered by a Court only after giving notice to either side, which means to the learned Counsel for either side in a suit, Petition etc. In the instant case during the time of the actual expert decree that was passed in the lower Court, the Defendant was not represented-by any Counsel and the Court should not have pronounced the judgment leading to that expert decree in the absence of the aggrieved party. I am unable to uphold this contention because no Court will pronounce any Order or judgment in the absence anyone of the parties and only expert decree can be passed in the absence of any party. But at the same this is one in which notice has been given and the judgment pronounced. The very fact that an Order of expert decree was passed in open Court is notice to the entire world. Therefore in the narrow ambit within which the question raises itself for adjudication in this Civil revision Petition is only whether the time has to be computed from the date of the expert decree or the date of knowledge by the aggrieved part, it is only the date of decree that will have to be taken into consideration and that has to be decided only against the revision Petitioner herein. Under these Circumstances, I hold that the point raised on behalf of he Appellant herein cannot be held and this revision deserves to be and in is hereby dismissed but under the circumstances, there is no Order as to costs.