State of Kerala and Others vs K.S. Joseph

Balakrishnan, J.—This is an appeal preferred by Defendants in O.S. No. 425/89 against the order in I.A. Nos. 6654 and 6655 of 1989.

The Respondent-Plaintiff had entered into a contract with the first Defendant State of Kerala for repair works of a public Road. The contract amount was Rs. 62,295 and the time stipulated for completion of contract was 10th December 1986. Plaintiff commenced his work on 15th April 1987 and completed on 15th July 1987. He alleges that Defendants had requested for certain deviations from the original contract but no sanction was accorded for the new estimate. The Plaintiff alleged that he had suffered damage to the extent of Rs. 1,36,395 and he filed the suit for realisation of this amount. The first appearance was on 16th October 1989 and on that day Defendants were not present and they were set ex parte and the Plaintiff was asked to file an affidavit and on 30th October 1989 Plaintiff filed an affidavit and on 31st October 1989 the suit was decreed as prayed for.

The Defendants filed an application to set aside the ex parte decree. The Defendants had also filed an application to condone the delay in filing the application as there was a delay of 56 days. Both these applications were allowed on 19th November 1992 and the ex parte order was set aside on condition that the Defendants would pay an amount of Rs. 250 as cost.

This order was challenged by the Plaintiff in C.R.P. No. 859/93. It was contended that the affidavit filed in support of the two applications filed by the Defendants were sworn to by the then Executive Engineer and that the Plaintiff did not get opportunity to cross examine the person who had sworn to such an affidavit. The matter was remanded to Court below for fresh consideration.

Thereafter, the matter was reconsidered by the Court below and the impugned order was passed by the learned Sub Judge. The learned Sub Judge declined to set aside the ex parte decree on the ground that Defendants failed to show sufficient cause for non appearance. This is challenged by the Defendants in appeal.

The specific contention raised by these Defendants was that, on receipt of the summons issued from the Court on 7th October 1989 they informed the District Government Pleader to make arrangements to enter appearance and get adjournment for filing the written statement. It is also contended that on 17th October 1989 Anr. request was made to the Government Pleader to do the necessary in the suit. The draft written statement was sent to the Government Pleader on 31st October 1989. Two witnesses were examined in support of this contentions.

P.W. 1 is an Executive Engineer. He deposed that on 16th October 1989 the case was posted and on that day he sought for an adjournment and the matter was informed to the Additional Government Pleader and that the statement of facts were sent to him on 31st October 1989. He did not receive any communication and on 7th December 1989 the matter was enquired to by an Assistant Engineer and then only he came to know that the suit was already decreed on 31st October 1989. After the remand P.W. 2 was examined on 8th October 1994. It was P.W. 2 who sworn to the affidavits filed in support of the application to set aside the ex-parte decree. The Defendants could not examine him and in the C.R.P. 859/93 the learned Single Judge of this Court observed that the Plaintiff may be given an opportunity to cross examine the person who had sworn to the affidavit in support of the petition. P.W. 2 had met with an accident and he could not be present in Court and therefore he was examined on Commission.

P.W. 2 deposed that after having received the summons in the case, his predecessor in office had taken urgent steps and on 7th October 1989 itself communication was sent to the Office of the Government Pleader and on 17th October 1989 Anr. request was sent to the Office of the Government Pleader to inform the hearing date of the suit, and on 31st October 1989 a draft written statement was sent to the Office of the Government Pleader. This evidence was given only to show that urgent and possible steps were taken to defend the suit and that there was no laches on their part. But the learned Sub Judge simply disbelieved the evidence of P.W. 2 and observed that no documentary evidence was given to prove that the Defendants did not produce the copy of these communications in Court but even the Plaintiff had not disputed the statement of P.W. 2. There was no denial as such by the Plaintiff when P.W. 2 was cross examined. When a public servant working in the rank of Executive Engineer gave evidence before the Court, normally the Court should lend credence to his evidence unless it is highly improbable or inherently lacks bona fides. In the present C.M.A., the office copy of all these communications have been produced. If the Court had any suspicion regarding the statement of P.W.2, he could have been asked to produce the documents. In our view, the Defendants have satisfactorily shown sufficient case for not appearing in Court on 16th October 1989, the day on which the Defendants were set ex parte.

Another important aspect which was not taken note of either by the Judge who passed the ex parte decree or his successor in office who declined to set aside the ex parte decree is that the Order Sheet in this case shows that the Defendants were set ex parte on 16th October 1989. From the proceedings paper, it is evident that Defendants were served with summons on 30th September 1989. Order 5 Rule 6 of CPC says that the day for the appearance of the Defendant shall be fixed with reference to the current business of the Court, the place of residence of the Defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the Defendant sufficient time to enable him to appear and answer on such day. Rule 63 of Civil Rules of Practise is the relevant rule for fixing of date for appearance of parties reads as follows:

Rule 63. Fixing of date for appearance of parties.-(1) The date for appearance of parties shall be so fixed by the Court as to allow a reasonable time between the date of service and the date of hearing. In the case of original suits, original petitions, small cause suits, and appeals it shall be not less than 7 days provided that in the case of suits in which the State is a Defendant, the time allowed shall be not less than 30 days. (2) If service is within the periods as above fixed and the party does not appear, the Court shall adjourn the hearing to a day beyond the prescribed periods and notice of such day shall be given to the party. In such cases the Court may, if it think proper, direct the issue of fresh summons.

In the instant case, the suit was filed against the State and the Defendants were set ex parte within a period of 17 days of the date of service of summons. The suit being filed against the State at least one months time should have been given for appearance of parties. Therefore it is clear that there was no proper service of summons and that itself is a sufficient ground to set aside the ex parte decree.

In the result, we allow the C.M.A., and set aside the ex parte decree passed by the trial Court. Since this being a suit of 1989, the Court below shall endeavour to dispose of the case at an early date.