Vasu vs Saroja Ammal

Govardhan, J.—This revision is against the order passed by the learned District Munsif, Polur dated 23.8.1994 in I.A. No. 89 of 1994

dismissing the petition filed u/s 5 of the Limitation Act.

The petitioner in his affidavit contends as follows: The plaintiff has filed the suit against the petitioner and others for declaration and for recovery

of possession. The petitioner came to know of the same only the previous day when one Ponmudi came to him and quarrelled with him stating that

he had sold a property in dispute to him. The property belonged to the father of the petitioner. One Dhanammal has filed the suit claiming a right in

the property. Ponmudi the subsequent purchaser of the property from Sundaram Pillai to whom the petitioner has sold the suit property. On

verification, the petitioner came to know that he was set ex parte on 3.5.1988 without any service of summons or notice. The petitioner has filed an

application to set aside the ex parte decree. Even though he has no knowledge of the suit, by way of abundant caution, he has filed the. application

to condone the delay.

The respondent in her counter contends as follows: The father of the petitioner Ranganathan was the third defendant in the suit. He died during

the pendency of the suit. All the legal heirs of the said Ranganathan are sought to be added as parties. An application for impleading the legal

representatives was filed. Notice sent to the petitioner was received by him. But, he did not choose to appear. After impleading the petitioner as a

legal representative and amending the plaint, a second notice was sent to the petitioner, his brothers and sisters. Even after receipt of this notice

also, they have not chosen to appear. The petitioner who is running a tea stall in the court premises, was aware of the proceedings. His claim that

he was not aware of the proceedings before, is not correct. The claim of the applicant that he was informed by Ponmudi about the pendency of the

suit is not correct. The further allegation that on enquiry, he came to know of the ex parte decree is also not correct. The petitioner has been

served with the summons. He has chosen to remain ex parte and has come forward with this application. The delay therefore cannot be condoned.

On the above pleadings, the learned District Munsif, Polur has passed the impugned order holding that the contention of the petitioner that there

was no delay is not correct and further contention that there was sufficient cause for his non appearance is not tenable and dismissed the petition.

Aggrieved over the same, the petitioner has come forward with the civil revision petition.

It is the specific case of the revision petitioner that summons in the suit filed by Dhanammal has not been served on him and it is only one day

prior to the filing of the petition, he came to know from one Ponmudi that there is a dispute over the suit property which he had sold to a person at

Vellore from whom the said Ponmudi has purchased the property. It is also the case of the petitioner that on enquiry, he came to know that he was

set ex parte and even though he was not served with summons in the suit, he has come forward with this application to condone the delay by way

of abundant caution. To substantiate his version, the petitioner examined himself as P.W. 1 and has given evidence. On the other hand, the

respondent who contends that the petitioner has been served with notice along with his brothers and sisters on two prior occasions viz., (1) when

he was sought to be impleaded as the legal representative of his deceased father Ranganathan, and (2) after impleading him as a party to the suit

and after carrying out of the amendment, when a second notice was sent to the petitioner, the petitioner did not choose to contest the application

even though he was served with notices and therefore. The present application is liable to be dismissed. To prove her version, the respondent had

examined the process server attached to the District Munsif''s Court at Polur as C.W. 1.

P.W. 1 has stated during cross examination that he was not aware that he was impleaded as the 27th defendant and no notice was received by

him since none has come to him. At a later stage of cross-examination, he would say that the signature in the summons available in the court

records appear to be his signature. But, he would contend that, it was not his signature. He would also add that in the file in the notice, signature of

his mother Sakkubai and grandmother Mannammal are there. He would add that the signature shown to him appear to be his signature. C.W. 1

the process server would say that on 5.4.1985, he served the summons for the hearing 11.6.1985 on Mannammal. Sakkubai and the petitioner.

He would also say that the petitioner has signed his name ""R. Vasu"" and received the notice and he has served the notice on the petitioner. He has

also made an endorsement in the return filed by him of having served the notice and it is Ex. C-1. During cross-examination, C.W. 1 would say

that he knew the petitioner and could identify him since he is running a tea shop in the court compound. Therefore, it is a case in which a process

server who can identify the person to whom notice has to be served, has served the notice on the said person and has made a return of the same to

the court. It is also stated by C.W. 1 that all the above three persons to whom he has served the notice, are residing in one and the same house. It

is further stated by him that it is not correct to say that the petitioner did not receive the notice after signing it. He would affirm that the signature in

Ex. C-1 is the signature of the petitioner. From the evidence of C.W.1, who is an officer of the Court, who has no motive to say anything false

against the petitioner, we can infer that notice has been actually been served on the petitioner, even before the hearing date. We can also infer that

notices were served on the other members of the family also. It is no doubt true that subsequently, a publication also has been made in the Tamil

Newspaper ""Malai Murasu"", when the suit summons could not be served on the petitioner. But, that is not sufficient to hold that the petitioner was

not aware of the pendency of the proceedings on the ground that there was only substituted service of the suit summons and no personal service on

him. The learned Counsel appearing for the petitioner relies upon two decisions of the court to contend that under Order 5, Rule 20 of the CPC

where an application to set aside an ex parte decree is made, substituted service under Order 5, Rule 20 shall not be deemed to be due service.

The learned Counsel appearing for the revision petitioner has picked up only one sentence from the ruling referred by him viz., in M. Ramalingam

Vs. Bhagwandas Mahesh Kumar Maheswari, Hindu Undivided Family by Kartha, Bhagwandas, . A Division Bench of this Court has held in the

above decision as follows:

It is true that Order 5, Rule 20(2) of the CPC states that service substituted by order of court shall be as effective as if it had been made on the

defendant personally. This is however, now subject to the present Explanation to Article 123 of the Limitation Act, where an application to set

aside an ex parte decree is made substituted service under Order 5, Rule 20 of the Code shall not be deemed to be due, service. At the same time

it cannot be said that merely because substituted service was resorted to and effected knowledge on the part of the defendant must always stand

ruled out. Even from service by substituted mode knowledge is inferable if the facts and circumstances warrant it.

The other decision relied by the learned Counsel appearing for the revision petitioner reported in Abdul Salam Rowther Vs. State Bank of India,

, is also similar to the one relied by the learned Counsel. The Division Bench Judgment reported in M. Ramalingam Vs. Bhagwandas Mahesh

Kumar Maheswari, Hindu Undivided Family by Kartha, Bhagwandas, , makes it abundantly clear that it cannot be stated that merely because

substituted service was resorted to and effected knowledge on the part of the defendant must always stand ruled out and that even from service by

substituted mode knowledge is inferable if the facts and circumstances warrant it. In the present case, the fact that the petitioner, his mother and

grandmother are residing in the same house and they were served with notices on two occasions and yet they have chosen to remain ex parte is

also a fact, which has to be taken into consideration. It cannot be stated that the petitioner, had no knowledge of the proceedings at all and he was

informed of the same, by Ponnmudi.

Admittedly by the petitioner, he had sold the property for which the suit has been filed to a person at Vellore and the said person had sold the

same to Ponmudi and as on the date of the filing of the application, the petitioner has no interest over the property. When admittedly by the

petitioner has no interest over the property which is the subject-matter of the suit, the present attempt of the petitioner to set aside the ex parte

decree passed against him cannot be said to be a bona fide one. In that view, I am of opinion that the petitioner is not entitled to have the delay in

filing the application to set aside the ex parte order condoned. Therefore, the order passed by the learned District Munsif, Polur is well founded

and does not call for any interference by this Court.

In the result, the civil revision petition is dismissed. No costs.