V. Divakaran vs Thanka and Others

Thomas P. Joseph, J.—Defendant No. 1 in O.S. No. 205 of 1986 of the court of learned Sub Judge, Palakkad is the petitioner before me challenging dismissal of an application to set aside the ex parte decree and to condone the delay in filing that application. It is not disputed that a preliminary decree was passed as early as on 13.10.1986 with petitioner-defendant No. 1 remaining ex parte. Pursuant to the preliminary decree there was an application to pass a final decree in which proceeding Advocate Commissioner inspected the property. Petitioner claims to have learnt about the preliminary decree only when Advocate Commissioner inspected the property on 03.06.1988 and without losing time he filed the applications - I.A. Nos. 1524 and 1525 of 1988 to set aside the ex parte decree and condone the delay claiming that he was not served with summons in the preliminary decree proceeding Applications were opposed by the contesting respondents. Learned Sub Judge observed that records do not reveal that when actually petitioner was served in the preliminary decree proceeding. However observing that there was sufficient service on petitioner through his wife the applications were dismissed. That has been confirmed by the learned Additional District Judge in C.M. Appeal Nos. 17 and 18 of 1989 which petitioner challenged in CRP Nos. 2597 and 2544 of 1991. Those revisions were dismissed on 13.03.2006 holding that in view of amendment to the CPC in the year 2002 revision petitions are not maintainable. Thereafter on 28.06.2010 petitioner has filed this Original Petition challenging the impugned judgment in the C.M. Appeals and common order on I.A. Nos. 1524 and 1525 of 1988. Learned Counsel contends that there was no proper service on petitioner in the preliminary decree proceeding and service of summons if any on the wife of petitioner is not in compliance with Rule 15 Order v of the CPC (for short, "the Code"). If that be so courts below were wrong in holding that there was proper service of summons on the petitioner, it is argued.

True, that under Rule 15 of Order v of the Code service on an adult member of the family residing with the defendant is contemplated only when the defendant is absent from his residence at the time service of the summons is sought to be effected on him at his residence and there is no likelihood of his being found at his residence within a reasonable time. According to the learned Counsel there is nothing on record to show that petitioner could not have been found at his residence within a reasonable time so that service could have been effected on the wife of petitioner.

There could be no quarrel with the proposition stated by learned Counsel in view of Rule 15 of Order v of the Code. Fact remained that summons in the preliminary decree proceeding was attempted to be served on petitioner and it was actually served on his wife who, it is not disputed was residing with the petitioner but she refused to accept the same. True, such service was not in literal compliance with Rule 15 of Order v of the Code but the second proviso to Rule 13 or Order IX of the Code states that no court shall set aside the decree passed ex parte merely on the ground that there has been an irregularity in service of summons if it is satisfied that defendant had notice of hearing (of the case) and had sufficient time to appear and answer the claim of the plaintiff. Here assuming that there was an irregularity in the service of summons on the wife of petitioner in view of Rule 15 of Order v of the Code that irregularity cannot help petitioner to set aide the ex parte decree if he had notice of the proceeding and had sufficient time to appear and answer the claim of plaintiff. The Supreme Court in Sunil Poddar v. Union Bank of India 2008 (20 KLT 15 (Case No. 16) has stated that as per the amended Code what is required to be considered is whether defendant had notice of hearing of the case and had sufficient opportunity to appear and show cause against the claim of plaintiff even it is shown that there is irregularity in service of summons. Division Bench of this Court in Dawood v. Zubaida 2010 (3) KLT 89 has held that when service was made by affixture at the residence of defendant who was abroad in the presence of his father, in the absence of anything to show that father had not conveyed the fact of affixture it could not be said that defendant was unaware of pendency of the suit. The position is still better in this case since admittedly petitioner was residing with his wife in the very same house. summons was served on the wife but she refused. There is no reason to think that refusal of the wife to receive summons was not communicated by her to the petitioner.

A further fact which persuades me not to interfere with the impugned judgment/order is that this Court dismissed the revision petitions as not maintainable on March 13, 2006 but this Original petition is filed only on June 28, 2010. In the meantime final decree proceeding must have progressed much. It is more than four years after dismissal of the revision petitions that this petition is filed. Writ Petition must have ben filed within a reasonable time. In the above circumstances I am not inclined to accept the argument of the learned Counsel.

Original Petition fails. It is dismissed.