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Sri Krishna Rice Mills, a Firm by Partner M.R.M.K. Chidambaram Pillai Vs. P. Rajagopala Konar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1958)2MLJ143
AppellantSri Krishna Rice Mills, a Firm by Partner M.R.M.K. Chidambaram Pillai
RespondentP. Rajagopala Konar
Cases ReferredMurugayyan Kangiar v. Marudayammal
Excerpt:
- .....district munsif and the learned district judge regarding the sufficiency of the service of the suit summons for the hearing on 14th june, 1952, ending with the ex parte decree was wrong and is proved to be wrong by the judgment of rajamannar, g.j., in murugayyan kangiar v. marudayammal : (1956)2mlj86 , delivered no doubt on 5th january, 1956, after the judgments of the learned district munsif and the learned district judge. the learned chief justice has held that where postal service of summons to the defendant was taken out under order 5, rule 9(3) of the civil procedure code, and the endorsement read that he had refused to receive the registered summons, and no affixture of the copy of the summons was effected, as required by order 5, rule 17, it must be held that there was no due.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition by Sri Krishna Rice Mills of Manachanallur, Lalgudi Taluk, Tiruchirapalli District, the defendants in O.S. No. 109 of 1952, on the file of the Court of the District Munsif, Tiruchirapalli, for revising and setting aside the judgment and decree of the District Judge, Tiruchirapalli, in C.M.A. No. 19 of 1954, confirming the order of the District Munsif, Tiruchirapalli, in I.A. No. 831 of 1953, dismissing the petitioner's application, under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against them on 19th June, 1952, and dismissing the C.M.A. The suit had been filed by one Rajagopala Konar, the respondent-plaintiff, against the petitioners, for recovering Rs. 1,250 with subsequent interest and costs, the suit amount being the value of paddy sold to the petitioners. A summons was served on the petitioners regarding the earlier hearing of the suit on 28th March, 1952. It was duly affixed, but the Court held that the service was not sufficient, and ordered fresh summons, adjourning the suit to 14th June, 1952. So the affixture of the first summons becomes irrelevant for the purpose of the I.A. and C.M.A. and this C.R.P. The summons regarding the hearing on 14th June, 1952 Was sent by registered post. P.W. 2 the manager of the petitioner's mill, refused to receive it, and it was also not affixed to the premises. This service was held to be sufficient by the District Munsif erroneoulsy and ex parte decree was passed on 19th June, 1952. Execution was taken out by the respondent, and notice of the E.P. was tendered to P.W. 2 the self-same manager of the petitioners mills, on 13th August, 1952 and he returned it without accepting it. This time, the notice was affixed to the premises by R.W. 2.

2. The petitioner's case was that they did not know either about the summons in the suit for the hearing on 14th June, 1952, or the notice in the E.P. and that they were not told about them by P.W. 2, the manager, and that they came to know for the first time about the ex parte decree only when execution was taken out for the suit amount against them on 14th October, 1952. They forthwith deposited the entire decree amount and costs, and filed the I.A. the very next day, namely, on 15th October, 1952, for setting aside the ex parte decree.

3. The learned District Munsif dismissed the I.A. holding that the refusal of thesum-mons for the hearing on 14th June, 1952, by P.W. 2, the agent, would do to constitute proper service on the petitioners, and that the refusal of the E.P. notice by P.W. 2 would do to show the knowledge of the ex parte decree on the part of the petitioners on 13th August, 1952, the date of the refusal, and, so, the I.A. filed on 15th October, 1952,would not do, in fact or in law, and would also be barred by limitation. Therefore, the learned District Munsif dismissed the LA. The petitioners took the matter in appeal.

4. The learned District Judge by his judgment in G.M.A. 19 of 1954 dismissed the appeal, holding that there was proper service of the summons for the hearing on 14th June, 1952, ending with the ex parte decree on 19th June, 1952. He held that P.W. 2 must have communicated to the petitioners about the refusal of the summons and E.P. notice by him. So he dismissed the appeal with costs. Hence this G.R.P. I have perused the records and heard the learned Counsel on both sides. Mr. A.V. Narayanaswami Iyer, for the petitioners, and Mr. A. Sundaram Iyer, for the plaintiff-respondent, have argued the case fully and fairly. Mr. A.V. Narayanaswami Iyer pointed out that the view taken by the learned District Munsif and the learned District Judge regarding the sufficiency of the service of the suit summons for the hearing on 14th June, 1952, ending with the ex parte decree was wrong and is proved to be wrong by the Judgment of Rajamannar, G.J., in Murugayyan Kangiar v. Marudayammal : (1956)2MLJ86 , delivered no doubt on 5th January, 1956, after the judgments of the learned District Munsif and the learned District Judge. The learned Chief Justice has held that where postal service of summons to the defendant was taken out under Order 5, Rule 9(3) of the Civil Procedure Code, and the endorsement read that he had refused to receive the registered summons, and no affixture of the copy of the summons was effected, as required by Order 5, Rule 17, it must be held that there was no due service of summons in accordance with law, and an ex parte decree would be therefore liable to be set aside. He has further held that the mere fact that the defendant refused to receive the summons sent by registered post does not necessarily mean that he was aware of the fact that a decree had been passed against him so as to entail the filing of a petition to set aside the ex parte decree within 30 days therefrom under Article 164 of Schedule to the Limitation Act and that the fact of his actual knowledge of the passing of the decree alone will be relevant, and not mere knowledge of the pendency of a suit.

5. Mr. A.V. Narayanaswamilyer urged that in this case, the suit summons, sent by registered post, was not refused by the petitioners but only by their manager, and that this made this case a stronger one than the case quoted. He also pointed out that there was no evidence to show that P.W. 2, the manager, told the petitioners about his refusal of the suit summons or the E.P. notice within 30 days before the filing of the LA. on 15th October, 1952.

6. Mr. Sundaram Iyer could not meet these contentions. All that he could urge was that the petitioners should have enquired of the manager, P.W. 2, and that if they had done so they might have known about the E.P. notice and therefore about the passing of the ex parte decree. But, that will amount only to laches, and laches will not do for preventing the setting aside of the exparte decree, and will only be sufficient for imposing terms before doing so.

7. I therefore direct that if the petitioners pay Mr. A. Sundaram Iyer, the learned Counsel for the plaintiff-respondent, by 3 P.M. on nth April, 1958, a consolidated sum of Rs. 75, which will not be costs in the Civil Revision Petition or any other proceeding whatever, to compensate the respondent for the waste of time, money and energy caused to him by their laches, then this Civil Revision Petition will be allowed without costs, and the orders of the District J udge and the District Munsif set aside, and the ex parte order in the suit also set aside and the suit restored to file and remanded to the trial Court for fresh disposal according to law, and that failing such payment by the said date and time, this Civil Revision Petition do stand dismissed without costs.


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