Silabai vs Narayana Rao and Others

Hari Nath Tilhari, J.—These revision petitions arise from the common judgment and order dated 8.12.1993 passed by the Civil Judge. Raichur, in Misc. Appeal No. 9/93 and 27/91 dismissing both the appeals. Miscellaneous Appeal No.9/93 and has arisen from the order of the trial Court dated 11.2.1993 passed by Munsiff, Lingasugur in Misc. Case No. 292, dismissing the revision petitioner''s application under Order IX Rule 13 for setting aside the ex parte decree dated 30.3.1998 passed in O.S. No. 10/88 while Misc. Appeal No.27/91 had arisen from order dated 18.9.1991 passed by Munsif Lingasugur, in Misc. Case No. Nil of 1991 rejecting Revisionist Petitioners application under Order DC Rule 13, CPC read with Section 151, CPC of setting aside ex parte decree dated 30.3.1998 which miscellaneous case has been filed along with application u/s 5 of the Limitation Act. The appeal Misc. appeals No. 9 of 93 and No.27/91 have been dismissed by Civil Judge, Raichur by one common judgment and order dated 8.12.1993.

Original suit No. 10/88 had been filed by the plaintiff-respondent for declarative decree and decree for possession. The suit was ex parte decreed against the revisionist-defendant (in both the revisions) by ex parte decree dated 30.3.1998. The case of the revisionist-applicant has been that he had no knowledge of the suit or the decree passed therein. He got the information and knowledge of the ex parte decree only on 30.7.1991. Applicants case has been that the revisionist-applicant had filed a suit in the Court of Munsiff, Sindhanur, which was also numbered as OS No. 10/88 in the Court of Munsiff, Sindhanur. In that suit, the present respondent filed an application for dismissal of the suit on the ground of Section II CPC alleging that present respondents suit OS 10/88 of the Court of Munsiff Lingasugur has been decreed and it was then and then only in July 30, 1991, the revisionist came to know of the decree passed in the suit. So he prayed that he had no knowledge of the pendency of the suit filed in the Munsif Court of Lingasugur and as he was not served, so the ex parte decree may be set aside. This application was moved under Order IX, Rule 13on 31.7.1991. Any way, learned Munsiff dismissed that application after having opined and observed that there is nothing on record to count the period of limitation. On 29.7.1991 petitioner has come to know of the judgment and decree passed in OS No. 10/88 on the file of this Court (Munsiff. Lingasugur). It was asserted in the application that the application was within time. The Court below observed that the certified coy of the judgment and ex parte decree in suit No. OS 10/88 passed by the Munsiff, Lingasugur, has not been produced as to show on what date the judgment and decree was passed. It further observed that the petitioner should have produced the certified coy. Sufficient opportunity was given to him to file the certified copy which has not been produced. On that basis, he had rejected the application. From that judgment of Munsiff, Lingasugur, the petitioner filed the Miscellaneous Appeal No.27/91. It may be mentioned here that during the pendency of the appeal No.27/91, the revisionist petitioner moved a second application on 29,10.1991. The learned Munsiff rejected that second application holding that the second application (Mis. Case No. 2/91) was not maintainable in law, in view of the order passed on the previous application. More over, as appeal is pending against the order passed in first application, held that second application which was numbered as Miscellaneous case No.2/92 to be not maintainable. It also held that the second application was also barred by four months from the date of knowledge and rejected the same. From the order dated 11.2.1993 passed by the Munsiff in Miscellaneous case No. 2/92, the defendant/petitioner filed Miscellaneous Appeal No. 9/93. Both the appeals were heard and disposed of by the learned Civil Judge by a common judgment and I think it proper to dispose of both the revisions by one common judgment.

I have heard Sri M.V. Seshachala, learned Counsel for the revisionist-petitioner and Sri S.G. Bhat, learned Counsel for the respondents.

It has been contended before me by the learned Counsel for the applicant that the Court below illegally refused to exercise jurisdiction vested in it by rejecting the application under Order IX, Rule 13 on the ground of limitation or on the ground of not filing of the certified coy of the ex parte decree. Leaned Counsel contended that once the appellate Court had come to the conclusion that the service of the summon on the present petitioner i.e., the defendant petitioner was not proper and sufficient, the learned lower appellate Court should have held that the limitation for moving the application for selling aside decree did commence from the date of knowledge i.e. 30.7.1991 and from 30.7.1991 the first application under Order IX, Rule 13 was made which was well within time. Learned Counsel contended that here is no rule requiring the filing of the certified copy of the ex parte decree along with the application for setting aside ex parte decree and when this was not the requirement of law even if the applicant did not file the certified copy of the ex parte decree, the Court below should have set aside the ex parte decree when it has found that the service of summons was not proper and sufficient on the defendant-applicant. Me further submitted that as the first application has been dismissed on the ground of not filing of the certified coy of the decree, the applicant moved the second application as the Court has been insisting on that, and that when the copy became available, the second application was made and time as consumed in obtaining the copy. Learned Counsel contended that if the first application is allowed which Miscellaneous case No. Nil of 1991 which has been given rise to Misc. Appeal No. 27/91. Civil Revision Petition No. 1365/94 and ex parte decree dated 30.3.1988 passed in OS 10/88, is set aside then second application i.e. Misc. Case No.2/92 and proceeding thereunder as well as Civil Revision No. 1365/91 will become infructuous.

On behalf of the respondent it has been contended that this has been the practice of the Court that while moving the application for setting aside ex parte decree, the party must file the certified copy of the ex parte decree and the defendant-petitioner was given much time, but he did not file the same and therefore the application under Order IX, Rule 9, CPC was rightly rejected. He further submitted that the revisionist-applicant had been served by publication and notice was issued and therefore the application for setting aside the decree being beyond 3D days of decree, the fist application itself is barred by time and the second application for same relief i.e. Misc. Case 2/92 was not maintainable when first one had been dismissed and appeal was pending from order therein.

I have applied my mind to the contentions of the leaned Counsel for the parties. Revisional jurisdiction of this Court is confined to jurisdictional error covered by either of the clauses (a) (b) and (c) of Section 115 and not to any error of law. In the present case, the main question was whether the defendant has been properly served with the summons or notice of the suit on the date of suit. As per Article 123 of the 3rd division of the schedule to the Limitation Act it is provided for application to set aside the decree passed ex parte or to hear an Appeal allowed ex parte the period of limitation prescribed is 30 days and in the 3rd column and time from which period of prescribed begins to run it is mentioned as ''the date of decree'' or where summons or notice was not duly served when the applicant had got the knowledge of the decree. In the present case, the applicant''s case is that he had no knowledge of the suit or decree passed thereunder. The lower Appellate Court also considered this aspect of the matter. Dealing with the point No. 2 in M.C. No. Nil/92 from which M.A. No.27/91 had arisen, the lower Appellate Court had observed as under:

"There is nothing on record to show that the Court before issuing substituted service was satisfied 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 appellate Court can see whether the order was made according to law and whether the trial Court was satisfied that the conditions mentioned in Order V Rule 20were fulfilled. In the instant case, there is nothing on record to show that the trial Court satisfied before ordering for substitute service on the defendant that he is keeping out of the way of for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way........

Admittedly, the summons was not personally served on the present petitioner in the said suit. There is nothing on record to show that the present petitioner at the time of institution of suit was residing at Halakawatgi village. Moreover, there is nothing on record to show that the present petitioner evaded the service of summons in the earlier suit."

Considering those circumstances, he further found that.

"There is nothing on record to show that Samaj Vikas Kannada daily published in Raichur was in circulation at Halakawatgi village."

Referring to these facts and circumstances, the Appellate Court finally found that:

"These circumstances indicate that the service on the present petitioner-defendant is not at all proper or sufficient."

So he answered the issue No. 2 namely whether the petitioner in MC No. 2/92 has shown sufficient cause for selling aside the ex parte decree in affirmative. Once it is found that the defendant-reviosnist-petitioner was not duly served with the summons and notice of the suit and that he came to know of the decree only on 30.7.1991 and moved the application for setting aside the ex parte decree on 31.7.1991 under Order IX Rule 13 read with Section 151, CPC. In every case, the Appellate Court should have exercised its jurisdiction to set aside the trial Court''s order in Miscellaneous Case No. Nil/ 91. But the Appellate Court dismissed the appeal taking the view that he had not filed the certified coy of the ex parte decree. The question is whether by taking such a view the lower Appellate Court has acted illegally and illegally refused to exercise jurisdiction vested in it or not. When this is the case and the facts have been proved that sufficient cause has been shown for absence and when it has been shown that the first application under Order IX, Rule 13 has been made well within time from the ate of knowledge, then introducing irrelevant consideration and taking wrong decision on the basis thereof and rejecting the application on that ground can be said to be nothing but illegal refusal to exercise jurisdiction vested. No provision in the CPC nor any provisions under the Rule has placed before me by the learned Counsel for the respondents nor has been referred to by the two Courts below in their judgment which could be said to make the filing of certified copy of the ex parte decree essential nor any rule has been shown which may require the filing of certified copy of the ex parte decree along with application under Order IX, Rule 13, CPC. Law did not put any impediment. Then taking into consideration that which the law does not so require any rejecting the application on that ground, in my opinion, can be said to be nothing but illegal refusal to exercise jurisdiction vested. Rules of procedure are made to sub serve the cause of justice and to avid delay. When the suit has been decreed ex parte and a person makes an application for setting aside of decree, that is when application is moved, no doubt, file of the suit has to be placed before the Court and ex parte decree is contained in the file as such. So there is no question of requiring the applicant to file the certified coy of the ex parte decree. That the appeal is not filed before the same Court which passed the decree, then the position may be different. Then for the purpose of limitation etc. the other Court may require the certified coy being filed. But if the application for ex parte decree is filed before that very Court which passed the ex parte decree, there would have been no sense if the rule would have required filing of the certified coy of the ex parte decree along with the application under Order IX, Rule 13. Requiring something which neither law or rule required, and then to dismiss the application on that ground would amount to abuse of the process of the Court.

Thus considered in my opinion, the trial Court as well as the lower appellate Court acted illegally as well as illegally refused to exercise jurisdiction vested in it by refusing to entertain the application for setting aside the ex parte decree which was well within time. In this view of the matter, the revision petition No. 1366/1994 which arises from the order and judgment passed in MA No.27/91 and MC No. Nil/91 has got to be allowed as the maintenance of the order impugned and the ex parte decree has got the tendency to cause grave injustice to the defendant against whom the decree has been passed without due service of the notice. The revision petition No. 1366/1994 and Miscellaneous Case No.Nil/91 are allowed and order of trial Court dated 18.1.1991 is set aside along with appellate order and the suit No. 10/88 is after setting aside ex parte decree hereby restored to its original number for trial and decision on merits.

In view of my above order in CRP No. 1366/94, allowing it, the revision petition No. 1365/1994 and Miscellaneous Appeal No.9/93 as well as Miscellaneous case No.2/92 have become infructuous and they do not require any order to be passed except that they have become infructuous, So dismissed.

The suit original No. 10/88 of the Court of Munsif, Lingasugur, is hereby restored to its original number and ex parte decree dated 30.3.1988 passed therein is set aside herewith and the Court is directed to proceed trial and decision of the suit according to law. No order as to costs.