1. The suit filed by the respondent for recovery of the balance of unpaid money under a registered Assignment Deed was decreed ex parte on the ground that the defendant had refused to take the summons. Immediately thereafter, the defendant moved the Court with an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, stating that she had not refused any summons, nor it was tendered to her. The trial Court after considering the evidence recorded a finding adverse to the defendant and also observed that the defendant had indirect knowledge about the filing of the suit. The correctness of the rejection of the application is called into question in this appeal.
2. The Court below in support of its conclusion has relied upon the following statement at para (8) in the evidence of the defendant:
'About 11 months back from today I received that notice I did not receive that notice. My husband was not in the house and hence I did not receive it. I informed the postman that in the Absence of my husband I cannot receive the notice'
'Myself, my husband and my children reside in the house. My children had gone to the school when the notice was brought by the postman.'
While dealing with the above Portion of the evidence, the Court observed thus:-
'The learned counsel for the Petitioner argued that nothing has been suggested to the petitioner that it was the suit summons which she refused about 11 months Prior to her statement and that no Inference can be drawn by the admission made by the petitioner in para, 8. I find that there is no force in the said contention. It has been admitted by the petitioner that she had knowledge and she was aware that the respondent was about to file a suit and that she had asked for advocates at Puttur and Mangalore to keep a watch. Under such circumstances, it cannot be said that the petitioner did not get knowledge that it was the suit summons when the envelope was tendered to her by the postman about 11 months ago. The learned counsel for the petitioner vehemently argued that the respondent should have examined the postman who tendered the envelope. I find that the respondent can very well rely upon the presumption arising under the proviso to Order 5, Rule 10 and it was for the petitioner to have examined the postman in order to rebut the presumption.'
3. Now the question is whether the Court was justified in holding that there was sufficient proof of service of the summons on the defendant.
It is seen therefrom that the Court below has proceeded on the assun4bm that the letter tendered by the postman to the defendant about 8 months earlier, was the summons issued in the suit. That conclusion was reached on the knowledge attributed to the defendant about the pending suit It seems to me that that conclusion. Is untenable. Firstly, there was no basis to hold that that letter tendered by the postman was the registered notice containing the suit summons. The defendant was examined on 30-7-1974. Eleven months earlier, goes back to the month of 30-8-1973, whereas the alleged date of refusal of the summons was on 4-64973. Secondly, the indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service, The service may be held to be sufficient only an the proof of delivery A or refusal to receive the summons,
There was one other error committed by the Court below. It has put the burden on the defendant to exam-me the postman in order to rebut the presumption available under 0. V, Rule 10. But the law is other way about, When the defendant has examined herself end stated that she had not refused to receive the letter, the prima facie presumption of the proof of service has disappeared, and it would be then for the plaintiff to produce cogent evidence to prove the 'shara' made by the postman. That was also the view taken by this Court in Ambajee RaoSubba Rao v. Shakulu Ram Hastimal Mootha (1963) 2 Mys LJ 482 in which it was observed at p, 485:-
'Now in this cast the defendant entered the box and gave evidence that he had not refused the service of summons and that the endorsement of refusal on the postal envelope was not true. If the weight to be attached to the endorsement disappeared and got displaced by the evidence given by the defendant to the contrary, and if plaintiff produced no evidence about the truth of that endorsement, as he should have done, by examining the postman, who made the endorsement, on the postal envelope, whatever presumption might have arisen under the provisions of the Rule 20-A as to the truth of the endorsement disappeared, leaving the matter at large. That that is the correct view to take is what is clear from the Full Beach pronouncement of the former High Court of Mysore in Somanna v. Heeraji,' (1938) 16 Mys LJ 485 (FB).
It is clear from the above observations, that it was for the plaintiff to have examined the postman who made the 'shara' on the postal envelope. If the plaintiff has not produced such evidence, as she should have done, the Court would not be justified in raising the prima facie presumption under Order V, Rule 10, Civil Procedure Code. The conclusion to the contrary arrived at by the lower Court is therefore, unjustified.
4. It was lastly contended for the respondent that if this Court is to hold that there was no proper service upon the defendant, the ex parte decree should not be unconditionally set aside. Counsel said that this Court at least must direct the defendant to deposit the admitted portion of the suit claim. The question herein is, whether the Court while setting aside the ex parte decree under Order M Rule 13, Is competent to impose such conditions apart from the direction to pay costs. The scope of Order M Rule 13, was considered in Shyam Lal Sahai v. Ram Narain Lal Seth, (1920) 57 Ind Cas 300 = (AIR 1920 Pat 660) in which Miller, Chief Justice, observed:
The Court may, first of all, impose conditions as to the payment of costs, it may, secondly, impose conditions as to the payment into Court and, in my opinion, this covers the payment into Court of the decretal amount or some portion thereof or payment into Court of the costs .........'
I respectfully agree with the above view. The Court is competent to ask the defendant to pay a portion of the decretal amount or of the costs while setting aside the ex parte decree, but such conditions should not be unreasonable or illegal.
5. In the instant case, I feel that the circumstances amply justify a direction to the defendant to deposit the admitted portion of the suit claim. The defendant does not dispute her liability to pay the balance of unpaid purchase money with 51/2 per cent interest from 3-6-1970. All that she prayed in the reply notice dated 15-5-1970 was that she might be given two years time for that payment. The said period also came to an end by September 1974. The suit was decreed on 30th July, 1973. . In these circumstances, the justice demands that the defendant should be asked to deposit Rs. 17,000/- along with 51/2 per cent interest from 3-61970 upto the date of the decree i.e.. 30th July, 1973.
6. If the defendant deposits the said sum, in the Court below within three months from today, the ex parte decree shall stand set aside without any further order to that effect, but if no such deposit is made, the ex parte decree shall remain undisturbed. The appeal accordingly stands disposed of.
7. In the circumstances, I make no order as to costs.
8. Order accordingly.