Varalakshmi vs C. Hanumantha Reddy

Heard both sides.

The petitioner has filed this civil revision petition aggrieved by the order of dismissal of her Interlocutory application No. 105/1991 in OP No.40/1990 dated 25th September, 1995 on the file of the Principal Subordinate Judge. Chittoor.

It is submitted by the learned Counsel Mr. Bhatt, representing Mr. E. Kalyanram, the learned Counsel for the petitioner that the petitioner preferred the application before the Court-below u/s 5 of the Limitation Act to condone the delay of 316 days in filing the petition to set aside the exparte decree passed against her in OP No.40/ 1990 on 6-8-1990. He submits that the petitioner is the respondent in the main OP and her husband filed the above OP for divorce on false allegations and obtained an exparte decree of divorce against her on 6-8-1990. The petitioner had no knowledge about the filing of the above said OP and she was not served with notice or summons either through Court or Post. He submits that in the 1st Week of May, 1990, while she was pregnant, her husband left her at her parents'' house at Bangalore for confinement, she was admitted in Vani Vilas hospital on 27-5-1990 and she begot a female child on 28-5-1990. As her health condition was not good, she was admitted in the hospital as an inpatient till 7-6-1990, she was advised regular medical check up every Thursday; as such, she resided with her sister, Sujatha at Bommana Halli till the end of August, 1990. Later on, she resided with her parents at Koramangala village and returned to her husband''s house at Varidikuppam in the month of December and lived with him for a few days. As her health deteriorated, she was again sent to Bangalore for medical treatment. After prolonged medical treatment she returned to her husband''s house, but she was not allowed inside his house. Inspite of his protest, she entered the house and the respondent brought some policemen and showed her the decree of divorce. Then only the petitioner came to know about the decree passed against her. Thereafter, she immediately came to Chittoor and obtained certified copy of the decree and came to know that the OP was posted on 23-7-1990 for her appearance and as she did not appear, she was set ex parte and ex parte decree was passed against her on 6-8-1990.

It is submitted that the absence of the petitioner on 23-7-1990 and on 6-8-1990, was not wilful or wanton, but only due to reasons stated above. The petitioner further submits that she has filed an application for setting aside the ex parte decree passed against her and as there is a delay of 316 days in filing the said application, in the circumstances stated above, the delay is neither wilful nor wanton; as such liable to be condoned.

Mr. Bhatt, the learned Counsel for the petitioner submits that no summons were served on the petitioner as required under Order 5 Rule 19A of the CPC and the proper procedure as per Order 5 Rule 19A of the Code has not been followed by the Court and that the order of the Court-below that there has been sufficient service of notice on the petitioner as per Ex.B2, is erroneous.

He submits that the suit summons were issued by the Court-below through Court as well as by Registered Post with acknowledgment due. Ex.B2 returned postal cover was received by the Court-below with the endorsement "refused" on 25-6-1990 and the case was posted on 23-7-1990 for the appearance of the petitioner and on the basis of Ex.B2, the Court-below held that there is sufficient service of notice and as she did not appear, she was set ex parte and the ex parte decree was passed on 6-8-1990. He further submits that Ex.C1, the endorsement on the notice issued to the petitioner, by the Court reflects that there is no such person; but by the date Ex.C1 was received, the Court has passed the exparte decree, as on the relevant date, she was in Bangalore for treatment and on the basis of Ex.A1 certificate which shows that she was treated at Bangalore and was inpatient in the hospital, there are sufficient grounds for condonation of delay.

Mr. Bhatt, the learned Counsel for the petitioner relied on a decision reported in Sri Lakshmi Srinivasa Oil and Rice Mills (Regd. Firm), Hindupur by Managing Partner K.R. Venkatesaiah Vs. Parepalli Veeranjaneyulu and Others, , wherein while dealing with Order 5 Rule 20A, 10 with regard to the service of summons, the Court held,

"mere refusal of summons sent by registered post without the proof of the existence of unserved summons and the order of the Court deeming it to be proof of service, would not entitle the plaintiff to invoke the provisions of the Rule 20A of Order 5 to seek to justify the ex parte decree."

This decision has been rendered before the amendment of CPC in 1976 and introducing the Rule 19Afrom 1-2-1997. Apart from this, in this case on the basis of Ex.B2 returned postal cover, the Court below held that there is sufficient service of summons; as such, this decision does not aid the petitioner.

Next he relied on a decision reported in B. Padmavathi Rai v. Parvathiamma, AIR 1976 Kant. 97; but this decision is not applicable to the contextual facts of the instant case where the provisions of Order 5 Rule 19A, are applicable. Apart from that, the petitioner resides at Bangalore in Karnataka State which is outside the jurisdiction of the Court-below.

He also relied on a decision reported in Prakash Chander Vs. Smt. Sunder Bai and Another, , wherein the learned Judge has held at page-109 thus:

"It would be too hyper-technical a view that there should be an explicit declaration. What Rule 19A contemplates is that the Court should examine the registered letter containing the summons and look into the endorsement made by the postal employees regarding the refusal and thereafter the Court may proceed to pass an ex parte order as contemplated under Order 9 Rule 6 CPC on the basis that the summons has been duly served. It would be sufficient or substantial compliance of Order 5 Rule 19A."

He further relied on a decision reported in Bhagwan Singh and Others Vs. Ram Balak Singh and Another, wherein while dealing with Order 5 Rule 19A proviso, it is held thus:

"Issuance of summons only under Order 5 Rule 1 Court not ordering issuance of summons for service by registered post nor recording reasons why it considered it unnecessary in the circumstances of the case - Held, service of summons was not valid."

Next the relied on a decision reported in Smt. Rajeshwari Vs. Jugal Kishore Gupta, wherein while dealing with Order 5 Rule 19A (2), it is held thus:

"Summons sent by Registered post with Acknowledgment due - Presumption as to service - Rule 19A does not contain adequate safe-guards against usual postal irregularities - Misuse cannot be ruled out - Necessity for amendment to Rule 19A (2) highlighted - Resort not to be had to Rule 19A except in extreme cases."

The next contention urged by Mr. Bhatt is that the learned Judge has also held in para-9 of the Judgment that the petitioner is living in adultery which is outside the scope of the petition and he has no jurisdiction to hold the same.

Relying on the above decisions, he submits that there has been sufficient explanation of the petitioner for condonation of delay and the Court-below erroneously dismissed the said petition to set aside the ex parte decree which is liable to be set aside.

Mr. Nalini, the learned Counsel for the respondent vehemently repels the contentions of the petitioner and submits that the petitioner deserted the respondent about 3 years back and there is no cohabitation between the petitioner and the respondent; but to his surprise and astonishment, the petitioner gave birth to a child in the month of May, 1990 and the respondent understands that the petitioner is living in adultery and he filed the main OP for divorce in the Court-below. When the notice was issued by the Court below to the petitioner through registered post with acknowledgement due, she refused the service of notice. He further denies the allegation that the petitioner returned to the respondent''s house at Varidikuppam with a child in the month of December, 1990 and lived with him for a few days and as her health deteriorated, she was sent to Bangalore for medical treatment by the respondent and that after prolong medical treatment, she returned to the house of the respondent, but she was not allowed inside the house and inspite of the protest from the respondent, the petitioner entered the house of the respondent and the respondent lias brought some policemen and showed the decree of divorce and then only, she came to know that decree of divorce was passed against her. He also submits that the petitioner having refused to receive the . summons issued by the Court-below, after passing of the decree against her, has filed this application only to protract the litigation and there is no proper explanation for delay and there are no merits in the application for condonation of delay.

He also submits that Ex. A1, Hospital admission card filed by the petitioner is not genuine and does not have any relevancy even if the same is issued by Vani Vilas Hospital, Bangalore. The residential address of the petitioner given in the Condone delay application and even in the present CRP, is one and the same, which the respondent has furnished in the OP before the Trial Court. There is no irregularity or illegality committed by the Court-below in dismissing the application of the petitioner for condonation of delay.

He also submits that the decisions cited by the learned Counsel for the petitioner, are not applicable to the facts of the case. The decision reported in Prakash Chander v. Smt. Sunder Bai (already cited supra) helps the respondent''s contention that there has been sufficient service of notice to the petitioner by registered past with acknowledgement due on the basis of Ex.B2, returned postal cover.

The Court-below after considering the pieas of the petitioner and the respondent and on the basis of oral and documentary evidence led by the parties, held that the petitioner has refused to receive the summons sent by registered post with acknowledgement due and the said service is sufficient and proper; but also held in para 9 of it''s judgment that the petitioner is living in adultery on the evidence led by the respondent, which is outside the scope of the petition which is filed for condonation of delay, as submitted by the learned Counsel for the petitioner.

It has to be examined whether the summons issued by the Court below in the OP, is in accordance with the provisions of Order 5 Rule 19-A CPC Rule 19-A has been inserted by the amendment Act of 1976 CPC with effect from 01-02-1977. Order 5 Rule 19-A (i) and (ii) CPC reads as under:

"''Simultaneous Issue of Summons for Service by Post in Addition to Personal Service:--(1) The Court shall, in addition to and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:

Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duty sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within 30 days from the date of the issue of the summons.

A reading of the above Section reflects that simultaneously summons for service can be issued by post in addition to service through Court. Rule 19-A provides that the Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive) also direct the summons to be serviced by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain.

Proviso to this Rule gives the discretion to the Court, that if in the circumstances, the Court considers it unnecessary it need not adopt the procedure for service of summons by registered post. Sub-rule (2) of Rule 19-A states that when an acknowledgment purporting to be signed by the defendant'' or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant.

Rule 19-A of Order 5 CPC does not spell out that summons by both the modes i.e., registered post, acknowledgment due as well as through Court should necessarily be served in order to constitute proper service. If the summons are served by any one mode as provided and if the Court holds that it is sufficient service, that would be proper service within the meaning of Rule 19-A of Order 5 CPC.

In the instant case the trial Court on the strength of the endorsement of refusal by the postal employee on Ex.B2 returned postal cover of summons with acknowledgment due held that there is sufficient service on the petitioner in the original petition, and on the facts on record I am also inclined to hold that the summons to the petitioner in the original petition by registered post, acknowledgment due was duly served on the petitioner.

It is significant to note that nowhere in her affidavit filed in support of her application u/s 5 of the Limitation Act to condone the delay in filing the petition to set aside the decree of divorce, the petitioner has stated that the suit summons were sent to the wrong address i.e. of her parent''s house at Koramangal a Village, Bangalore and it is rightly pointed out by the learned Counsel for the respondent that the residential address of the petitioner as given in the application to condone the delay and as well as in the present CRP and the address furnished by the respondent in the main OP, are one and the same, on which the Court issued summons by registered post with acknowledgment due in the OP and through Court. It is also to be noted that though the petitioner has taken the plea that the Court summons were not served on the petitioner through registered post or through Court in the original OP but in the application filed u/s 5 of the Limitation Act for condonation of delay, the petitioner has calculated 316 days under Article 123 of the Limitation Act deleting 30 days from the date of passing of the decree to the date of filing of the petition to condone the delay in filing the petition to set aside the ex parte decree. It implies that the service of notice has been effected on the petitioner; but on the other hand, the petitioner submits in her affidavit that she came to the house of the respondent along with a child, even on his protest, she entered the house and her husband brought some policemen and showed the decree of divorce and then only, she came to know that the decree of divorce has been passed against her. If that version is taken to be true, she should have given specific date of her being not allowed into the house of the respondent and should have calculated the condonation of delay from the said date; but in the instant case, that has not been done and if the delay as prayed for in the petition is taken as 316 days, the petitioner has to specifically explain the delay. Even as per Ex.A1 hospital admission card, she was discharged from the hospital on 7-6-1990; but as stated she was advised to take regular treatment after discharge, she resided with her sister Sujatha at Beggu Road, Bangalore till the end of August. Later, she resided with her parents at Koramangal, Bangalore. There is no other evidence on record except her self-serving statement. The delay in filing the application is not properly explained.

In a recent case resorted in P.K. Ramachandran Vs. State of Kerala and Another, , the Apex Court had laid down the principle in considering the condonation of delay under Law of Limitation. Their Lordships have held thus:

"Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained."

Following the above Supreme Court Judgment on the facts of the instant case, I hold that the petitioner foiled to explain the inordinate delay of 316 days to set aside the ex parte decree.

However, insofar with regard to the finding of the trial Court in paragraph-9 of the Judgment to the effect that petitioner is living in adultery is concerned, the said finding as rightly contended by the learned Counsel for the petitioner is outside the scope of the petition nor it is germane in the contextual facts of the case; as such the said finding of the learned Judge is irrelevant and is liable to be purged. Accordingly, the above said finding of the learned Judge is purged from the order in IA.No.105/91 in OP No.40/90, dated 25-09-1995.

In the views which I have held above, the CRP lacks merit and the same is dismissed with the above observation. No costs.