The petitioners/petitioners/defendants have filed this civi revision petition as against the order dated 03.08.2009 in I.A.No.7228 of 2009 in O.S.No.4088 of 2004 passed by the learned VIII Assistant Judge, City Civil Court, Madras.
2.The trial Court, while passing orders in I.A.No.7228 of 2009 in O.S.No.4088 of 2004, has, among other things, observed that the petitioners/defendants should have examined their tenant because of the fact that they are come to know about the suit only through them and in the absence of the tenant being examined, the reason ascribed by the revision petitioners in regard to the delay of 1383 days in filing an application to set aside the exparte decree dated 08.06.2005 is not accepted and has dismissed the application for want of bona fides.
3.The learned counsel for the revision petitioners/ defendants contends that the order of the trial Court dated 03.08.2009 in dismissing the I.A.No.7228 of 2009 is contrary to law and against the principle of equity and the trial Court has not looked into an important fact that it is the categorical case of the petitioners that the suit summons have not been served on the petitioners/defendants and as a matter of fact, the application under Section 5 of the Limitation Act has been filed only by means of an abundant caution and the petitioners have not been aware of the suit at all till 07.04.2009 since they have shifted the residence from Chennai in the year 2006 itself after the demise of S.K.Bansal, the husband of the first revision petitioner and father of the 2nd and 3rd petitioners and it is their tenant, who has been residing at Flat No.8, 2nd Floor, Shanti Sagar Apartments, 92, Vepery High Road, Vepery, Chennai 600 007, has received the notice from the X Assistant Judge, City Civil Court, Chennai in E.P.No.2404 of 2008 and only from the tenant the petitioners have come to know about the case and soon contacted the counsel at Chennai and proceeded to file the necessary applications to set aside the exparte decree, within 30 days from the date of knowledge of the said exparte decree and indeed, the recourse will reveal that no suit summons have been served on the defendant and that the respondent/plaintiff has obtained the exparte decree subsequent to the paper publication being effected as per order V Rule 20 of the Civil Procedure Code and added further, the issues involved in the suit are contentious one and the revision petitioners should have been given an opportunity to contest the main suit. But these aspects of the matter have not been adverted to and appreciated by the trial Court in proper perspective and therefore, prays for allowing the civil revision petition.
4.In the affidavit filed by the revision petitioners/ defendants in I.A.No.7228 of 2009, it is averred that the respondent/decree holder has obtained an exparte decree against them and this has been informed by their tenant Suresh Chand S/o.Tara Chand, residing at their Flat at Vepery and immediately they have instructed their counsel at Chennai and obtained these particulars and absolutely there is no necessity for their father to pay a sum of Rs.7,42,948/- as falsely claimed by the respondent/decree holder and the respondent/decree holder has been acquainted with the revision petitioners father and used to come to their office very casually with no business dealings and taking advantage of the death of their father and creating a single line statement of account with no supporting evidence whatsoever, the respondent/decree holder has obtained an exparte decree against the revision petitioners and the Proprietary concern of their father viz., Deepak Road Carriers has been closed soon after the demise of their father etc. and the petitioners have not been at Chennai and they have shifted their residence and in fact the respondent has filed the suit as an indigent person avoiding payment of Court fee since the petitioners have not been in Chennai and the respondent/plaintiff has played a fraud on the Court taking summons to their erstwhile Chennai address and finally resorted to paper publication of summons and eventually managed to get an exparte decree in his favour and none of the petitioners in the family has no necessity to borrow money or become liable to the respondent/decree holder and taking advantage of the proximity, the respondent /decree holder has managed to obtain some signature or signatures, besides one cheque allegedly signed by their father which has been used for filing yet another suit O.S.No.6068 of 2003 on the file of the learned VII Assistant Judge, City Civil Court, Chennai and prepared the alleged statement of account dated 31.03.2000 and since no suit summon has been received by the petitioners from the trial Court in O.S.No.4088 of 2004, an exparte decree has been obtained by dubious and fraudulent means and in any event, the respondent/plaintiff is not entitled to any decree on a fictitious suit that too after obtaining permission to sue as an indigent person, thereby committing a very serious fraud and an abuse of process of Court and therefore, has prayed for condoning the delay of 1383 days in filing the application to set aside the exparte decree dated 08.06.2005 in O.S.No.4088 of 2004 on the file of the trial Court.
5.In the counter filed by the respondent/decree holder, it is stated that Santhoshkumar Bansal @ S.K.Bansal has been carrying on business under the name and style of Deepak Road Carriers dealing in transport of goods and arranging transport to the needy persons and every day the said S.K.Bansal required funds to meet his demands with reference to his customer and he has a volume of business and every day he has to disburse the payments to his employees for arranging lorry facilities to the needy and whenever he has been in requirement of money, the said S.K.Bansal used to call the respondent/decree holder and the respondent/decree holder has used to lend money to the said S.K.Bansal and the said S.K.Bansal who has been carrying on business under 'Deepak Road Carriers' has given a statement of account which has been filed along with the plaint wherein it is categorically mentioned that S.K.Bansal has been indepted to an extent of Rs.7,42,948/- and the basis of claim made in the suit is the statement of account given by the defendants father in interlocutory application etc. and that the petitioners has never informed the respondent/decree holder that they have left Chennai to Haryana and in the affidavit the petitioners have not whispered on what date they left to Haryana and the revision petitioners are aware of the suit initiated by the respondent/decree holder and their family members are closely watching the proceedings as mentioned by them in their own affidavit and one of their tenant Suresh Chand has been continuously informed about the progress of the legal proceedings initiated by the respondent and when execution proceedings ultimately has been initiated, the petitioners have projected the Section 5 Application under the Limitation Act and that they have not satisfactorily explained the delay in filing the application and indeed, each and every days delay has been explained, but the affidavit is as bald and vague that it can be and there is no proper reason adduced for condonation of an inordinate delay and therefore, prays for dismissal of the said application.
6.In support of the contention that the defendants are entitled to project an application to set aside the exparte decree passed against them within 30 days from the date of knowledge of decree when they are able to show that summons are not duly served on him, the learned counsel for the revision petitioners cites the decision of this Court in The Motor & General Finance Limited, rep. By its Regional Manager, Madras V. S.Durailingam also known as S.Duraisingam and another 2009 (3) CTC 342 at page 343 wherein it is inter alia held as follows:
"
Article 123 of the Limitation Act, 1963 provides 30 days period for an Application to be filed to set aside a decree passed ex parte from the date of the decree or where the summons or notice were not duly served when the applicant had the knowledge of the decree. Admittedly, in this case, summons or notices were not served and the applicant had the knowledge of the decree only on 3.3.2006. In this context, the explanation to
Article 123 is also referable. By that explanation, the substituted service under Order 5, Rule 20 of Civil Procedure Code shall not be deemed to be due service. Hence, in our opinion, the substituted service dated 30.9.2002 is also not of any assistance in this case and the Application filed on 6.3.2006 made within 30 days of the knowledge of the ex parte decree is maintainable and the argument of the learned Senior Counsel appearing for the plaintiff that the Application for setting aside the ex parte decree ought not to have been entertained without there being any Application for condonation of delay cannot be therefore accepted. Accordingly, we reject the first challenge to the impugned order."
7.He also relies on the decision of this Court S.Janaki V. M/s.Swetha Associates, rep. By its Partner, Mr.P.Sureshkumar and others 2009 (4) CTC 722 wherein it is held that 'litigant should not be shut down from offering his defense by refusing to condone delay in filing the Application to set aside ex parte decree even if defendant had contributed to such delay and that the explanation offered for condoning delay should not be mala fide and should not form part of dilatory strategy and Court should also consider position of opposite party and order costs when there are laches.'
8.For the hearing on 01.11.2004 in O.S.No.4088 of 2004 on the file of the learned VIII Assistant Judge, City Civil Court, Chennai, the endorsement of the Bailiff in the summons dated 28.9.2004 to be served on the petitioners/ defendants 2 to 4 is in English as "UNSERVED Vacated" and also in Tamil 'the Bailiff has endorsed that he has gone to the address of the defendants on 04.10.2004 and he has been informed by the neighbours that the defendants have vacated and therefore, he has returned the summons to the Court as 'Unserved'.
9.Similarly, for the hearing on 14.12.2004 in the summons in the above suit the Bailiff in regard to the four defendants has stated in English 'UNSERVED Vacated" and in Tamil has stated that he has gone to the address given in the process on 16.11.2004 and that the defendants have vacated the place mentioned in the address, as informed by the neighbours and therefore, he has returned the same to the Court as 'Unserved'.
10.Again for the hearing on 31.1.2005 the Bailiff has stated in the summons that "UNSERVED Vacated" and that he has gone to the address given in the process on 06.1.2005 and has been informed by the neighbours that the defendants have vacated the place and therefore, he has returned the summons to the Court as 'Unserved'.
11.Further, a perusal of the Process Application No.4159 in O.S.No.4088 of 2004 taken out by the respondent/ plaintiff, it is seen that the Registered Covers sent to the defendants 1 to 4 by RPAD through Court have been returned as 'Left' with postal endorsements thereto dated 14.12.2005 11.30 a.m.
12.That apart, the Notes Paper in O.S.No.4088 of 2004 indicates that the RPAD has been returned as 'Left' and therefore, steps for Substituted Service has been ordered for the hearing on 04.04.2005. On 04.04.2005 steps for Substituted Service has been taken and publication in Malaimurasu has been ordered for the hearing on 08.06.2005. For hearing on 08.06.2005, the respondent/plaintiff has effected the Malaimurasu paper publication and it is noted that 'Respondent set exparte. Ex.A.1 and A.2 marked. Suit Claim proved. Suit is decreed as prayed for with costs.' Therefore, it is quite evident that an exparte decree has been passed against the revision petitioners on 08.06.2005.
13.As far as the present case is concerned, the endorsements of the Bailiff in regard to the service of the summons on the defendants on three occasions is that they have vacated the place as informed by the neighbours and as such, the summons have not been served and duly returned as unserved. In regard to the summons taken through RPAD on the defendants the endorsement is that they have left.
14.In this connection, it is to be noted that the object of the service of summons in whatever way may be effected [other than substituted service to which other considerations apply], is that the defendant may be informed of the institution of the suit in due time, before the date fixed for the hearing, as per decision Bhomsheeti V. Umabai (1897) 21 Bom 223. At this stage, this Court pertinently points out that 'where the defendant has not served with summons, the mere fact that he had knowledge of the suit is immaterial as per decision Bengal Chand and Company V. Durga Sankar Gouri Sankar (1955) 1 Cal 119. Admittedly, it is not the case of the respondent/decree holder that the defendants have refused to accept the service or they cannot be found. Significantly, the respondent/decree holder has candidly averred that 'revision petitioners/defendants are closely watching the proceedings as mentioned by them in their affidavit and one of their tenants Sri Suresh Chand has been continuously informing them about the progress of the legal proceedings etc.' But it is the specific case of the revision petitioners that they are residing at Haryana permanently for the demise of the father in 2000 and that they have been informed about the exparte decree by their tenant Sri Suresh Chand residing at their Flat at Vepery etc.
15.Inasmuch as the defendants in the suit in O.S.No.4088 of 2004 have not been served with the suit summons much less the revision petitioners, the mere fact that one of the revision petitioners tenant Suresh Chand residing at the revision petitioners Flat at Vepery, Madras as informed the revision petitioners about the exparte decree will not impute knowledge of the revision petitioners in respect of the suit filed/initiated against them by the respondent/ decree holder in law.
16.According to the learned counsel for the respondent/ plaintiff, Order 9 Rule 13 of Civil Procedure Code is not applicable and only the ingredients of Order 37 Rule 4 of Civil Procedure Code will apply.
17.This Court recalls the decision in Karumilli Bharathi V. Prichikala Venkatachalam AIR 1999 Andhra Pradesh 427 wherein it is held as follows:
"In a decree passed against the defendant for his not entering an appearance in terms of R.2(3) of O.37, it is an 'ex parte decree' in the sense that C.P.C. has used it. But, instead of passing an exparte decree, a decree is passed as if the defendant has admitted the allegations of the plaintiff, "as if admitted" is only to make the decree effective and the decree does not cease to be 'ex parte' in the sense O.9, R.13 has used it. The O.9, R.13 is not applicable because of O.37, R.7 makes a summary procedure self-contained Code and regarding the matters for which a procedure is not provided under O.37, then other procedure provided to the suits would be applicable as if it is a suit instituted in an ordinary manner. It is in this sense of the term, it is a decree for the purpose of R.3(6) of O.37, but it is an "ex parte decree" in terms of R.2(3) of O.37. For instance, R.3(7) of O.37 provides that "the Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit". Therefore, the principle of 'sufficient cause' is made applicable under R.3(7), since in fact it is an 'ex parte' proceedings. Though the allegations are deemed to have been admitted, yet if the defendant shows "sufficient cause" under R.3(7), the Cout may excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. From this it further follows that R.3(7) applies before a decree is passed and if a decree is passed, that would be the decree for the purpose of O.37, R.4 under which the defendant has to make out "special circumstances" for setting aside such a decree. If the Court also feels it reasonable to do so, such decree may be set aside and defendant may be granted leave to appear and defend the suit. (paras 10, 11) Rule 4 of O.37 applies only to ex parte decree on the basis of deemed admissions on the parte of defendant, but not to a decree passed on contest in the presence of both parties. Therefore,
Art.123 governs such ex parte decree passed under O.37 and the limitation is 30 days, but not three years. This interpretation, is based on reasonable construction of the provisions of O.37 of C.P.C. along with S. 123 of the Limitation Act. To say that for other ex parte decree passed in a summary suit under O.37 is three years would be absurd. When the Legislature thought of providing a speedy remedy for the plaintiff to obtain the decree under S.37, they could not have thought of providing three years' limitation under
Art. 137 of the Limitation Act for setting aside such an ex parte decree.
AIR 1958 Bom 10, AIR 1995 Raj 16, AIR 1977 J & K 30, Dissented from (para 12) In the instant case the application filed by the defendant beyond the period of 30 days would be barred by limitation and he can show the 'special circumstances' under R.4 of O.37, but not the 'sufficient cause' in terms of S.5 of the Limitation Act, since the principle of sufficient cause found under R.4. To this extent, S.5 of the Limitation Act stands modified by O.37, R.4, CPC on the ground that the special law excludes the general law. Since, the O.37 has not provided any specific limitation as a special law, the general law of limitation provided under
Art.123 of the Limitation Act applies and such period of limitation is 30 days. Therefore, in such circumstances, the defendant shall file an application within 30 days, but should show specific circumstances for condonation of delay and for setting aside the ex parte decree."
18.If a defendant has not having good and a meritorious defence, an exparte decree would not be set aside as per decision in 1999 A I H C 2657, 2662 Bom. In fact, the defendant in restoration is to show special circumstances and not mere sufficient cause in terms of Section 5 of the Limitation Act.
19.Continuing further, the concept 'every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The said concept must be applied in a natural common sense pragmatic manner. It is to be borne in mind that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when the delay is condoned, the highest thing that can happen is that a cause will be decided on merits after hearing the parties. A litigant by resorting to delay runs a grave risk. There is no assumption or presumption or supposition that the delay has occasioned on account of malafides are deliberately. When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred, for the other side cannot claim to vested right in injustice being done because of a non deliberate delay. It is to be noted that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. The expression 'sufficient cause' is quite elastic to enable a Court of Law to apply the same to subserve the ends of justice in a purposeful and meaningful manner. In short, a liberal approach will have to be made by a Court of Law while dealing with the condonation of delay application filed under Section 5 of the Limitation Act, in the considered opinion of this Court.
20.The observation of the trial Court, while dismissing the I.A.No.7228 of 2009, to the effect that the revision petitioners ought to have examined their tenant viz., Suresh Chand to prove their case and in the absence of he being examined as a witness, the reason furnished by the petitioners cannot be accepted is not correct, in the considered opinion of this Court for the simple reason that admittedly in the present case, the defendants/revision petitioners have not been served with the suit summons which is a special/extraordinary circumstance and a sufficient cause or reason and the mere fact that the revision petitioners have knowledge of the exparte decree in the suit through their tenant mentioned aforesaid is immaterial and the same will not be of any assistance to the respondent/ decree holder when in fact the revision petitioners ought to have been served properly with the summons and suffice it for this Court to point out that looking at from any point of view, considering the facts and circumstances of the case and with specific reference to the reason ascribed in the affidavit filed by the petitioners in I.A.No.7228 of 2009 with regard to the condonation of delay and in the light of detailed discussion enumerated supra and also by taking a liberal and lenient view in the matter overriding technicalities to deliver substantial justice, this Court comes to the inevitable conclusion that the order passed by the trial Court in I.A.No.7228 of 2009 deserves to be set aside to prevent an aberration of justice and accordingly, this Court set aside the impugned order in I.A.No.7228 of 2009 in O.S.No.4088 of 2004 dated 03.08.2009 on the file of the trial Court and resultantly, allows the civil revision petition.
21.In the result, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.No.7228 of 2009 dated 03.08.2009 is set aside and consequently, the condonation of delay application in I.A.No.7228 of 2009 is allowed. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
sgl To VIII Assistant Judge, City Civil Court, Madras