Sri Krishna Rice Mills vs P. Rajagopala Konar

Panchapakesa Ayyar, J.—This is a petition by Sri Krishna Rice Mills of Manachanallur, Lalgudi Taluk, Tiruchirapalli Dist. the defendants in

O. S. No. 109 of 1952, on the file of the District Munsif, Tiruchirapalli, for revising and setting aside the judgment and decree of the District Judge,

Tiruchirapalli in C. M. A. No. 19 of 1954, confirming the order of the District Munsif. Tiruchirapalli in I. A. No. 831 of 1953, dismissing the

petitioner''s application, under O. 9, R. 13, C. P. C, for setting aside the ex parte decree passed against them on 19-6-1952, and dismissing the C.

P. A. The suit had been filed by one Rajagopala Konar, the respondent-plaintiff, against the petitioners, for recovering Rs. 1250 with subsequent

interest and costs, the suit amount being the value of paddy sold to the petitioners.

A summons was served on the petitioners regarding the earlier hearing of the suit on 28-3-1952. It was duly affixed, but the Court held that the

service was not sufficient, and ordered fresh summons adjourning the suit to 14-6-1952. So the affixture of the first summons becomes irrelevant

for the purpose of the I. A. and C. M. A. and this civil revision petition.

The summons regarding the hearing on 14-6-1952 was sent by registered post. P.W. 2, the manager of the petitioners'' mill, refused to receive it,

and it was also not affixed to the premises. This service was held to be sufficient by the District Munsif erroneously, and an ex parte decree was

passed on 19-6-1952. Execution was taken out by the respondent and notice of the E. P. was tendered to P. W. 2, the self same manager of the

petitioners mills, on 13-8-1952 and he returned it without accepting it. This time, the notice was affixed to the premises by R. W. 2.

The petitioner''s case was that they did not know either about the summons in the suit for the hearing on 14-6-1952 or the notice in the E. P.,

and that they were not told about them by P. W. 2, the manager, and that they came to know for the first time about the ex parte decree only when

execution was taken out for the suit amount against them on 14-10-1952. They forthwith deposited the entire decree amount and costs and filed

the I. A. the very next day, namely, on 15-10-1952, for setting aside the ex parte decree.

The learned District Munsif dismissed the I. A. holding that the refusal of the summons for the hearing on 14-6-1952 by P.W. 2, the agent

would do to constitute proper service on the petitioners, and that the refusal of the E. P. notice by P.W. 2 would do to show the knowledge of the

ex parte decree on the part of the petitioners on 13-8-1952, the date of the refusal and so, the I. A. filed on 15-10-1952 would not do, in fact or

in law, and would also be barred by limitation. Therefore the learned District Munsif dismissed the I. A. The petitioners took the matter in appeal.

The learned District Judge by his judgment in C. M. A. No. 19 of 1954, dismissed the appeal, holding that there was proper service of the

summons for the hearing on 14-6-1952, ending with the ex parte decree on 19-6-1952. He held that P. W. 2 must have communicated to the

petitioners about the refusal of the summons and E. P. notice by him. So he dismissed the appeal with, costs. Hence this civil revision petition.

I have perused the records, and heard the learned counsel on both sides. Mr. A.V. Narayanaswami Iyer, for the petitioners and Mr. A.

Sundaram Iyer, for the plaintiff-respondent, have argued the case fully and fairly. Mr. A.V. Narayanaswami Iyer pointed out that the view taken by

the learned District Munsif and the learned District Judge regarding the sufficiency of the service of the suit summons for the hearing on 14-6-1952,

ending with the ex parte decree, was wrong, and is proved to be wrong by the judgment of Rajamannar, C.J. in Murugayyan Kangiar v.

Marudayammal, 69 Mad LW 563 (A), delivered no doubt on 5-1-1956, after the judgments of the learned District Munsif and the learned District

Judge.

The learned Chief Justice has held that where postal service of summons to the defendant was taken out under O. 5, R. 9(3), C. P. Code, and the

endorsement read that he had refused to receive the registered summons, and no affixture of the copy of the summons was effected, required by

O. 5, R. 17, it must be held that there was no due service of summons in accordance with law and an ex parte decree would be therefore liable to

be set aside.

He has further held that the mere fact that the defendant refused to receive the summons sent by registered post does not necessarily mean that he

was aware of the fact that a decree had been passed against him so as to entail the filing of a petition to set aside the ex parte decree within 30

days therefrom, under Art. 164 of Schedule to the Limitation Act and that the fact of his actual knowledge of the passing of the decree alone will

be relevant, and not mere knowledge of the pendency of a suit.

Mr. A.V. Narayanaswami Iyer urged that, in this case, the suit summons, sent by registered post, was not refused by the petitioners but only by

their manager, and that this made this case a stronger one than the case quoted. He also pointed out that there was no evidence to show that P.W.

2, the manager, told the petitioners about his refusal of the suit summons or the E. P. notice within 30 days before the filing of the I. A. on 15-10-

1952.

Mr. Sundaram Iyer could not meet these contentions. All that he could urge was that the petitioners should have enquired of the manager, P. W.

2, and that if they had done so they might have known about the E. P. notice and therefore about the passing of the ex parte decree. But, that will

amount only to laches, and laches will not do for preventing the setting aside of the ex parte decree, and will only be sufficient for imposing terms

before doing so.

I therefore direct that if the petitioners pay Mr. Sundaram Iyer, the learned counsel for the plaintiff-respondent by 3 p.m. on 11-4-1958, a

consolidated sum of Rs. 75, which will not be costs in the C. R. P. or any other proceeding whatever, to compensate the respondent for the waste

of time, money and energy caused to him by their laches, then this C. R. P. will be allowed without costs and the orders of the District Judge & the

District Munsif set aside, and the ex parte order in the suit also set aside and the suit restored to file and remanded to the trial Court for fresh

disposal according to law and that failing such payment by the said date and time, this civil revision petition do stand dismissed without costs.