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M. Ramalingam Vs. Bhagwandas Mahesh Kumar Maheswari, Hindu Undivided Family by Kartha, Bhagwandas - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1984)1MLJ285
AppellantM. Ramalingam
RespondentBhagwandas Mahesh Kumar Maheswari, Hindu Undivided Family by Kartha, Bhagwandas
Cases ReferredDoraiswamy Ayyar v. Balasimdaram Ayyar
Excerpt:
- .....as eight defendants in the suit. the suit came to be laid on 27th november, 1979. along with the suit, application no. 4694 of 1979 was filed by the plaintiff for an order of injunction restraining alienations by the defendants, pending the suit. interim injunction was granted on 6th december, 1979, in that application. the order of interim injunction was admittedly served on the second defendant on 12th january, 1980, along with the relevant papers. on 5th march, 1980, suit summons was affixed at the outer door of the premises in question and that is, old no. 23, new no. 9, venkatesa naicken street, george town, madras, because, as per the evidence of the bailiff examined in this case as r.w. 1. attempts to serve personally on the second defendant on three different occasions proved.....
Judgment:

S. Nainar Sundaram, J.

1. The second defendant in C.S. No. 629 of 1979 on the file of the Original Side of this Court is the appellant in this appeal. The respondent is the plaintiff is the suit. The suit was laid by the plaintiff for specific performance of an agreement of sale. There are as many as eight defendants in the suit. The suit came to be laid on 27th November, 1979. Along with the suit, Application No. 4694 of 1979 was filed by the plaintiff for an order of injunction restraining alienations by the defendants, pending the suit. Interim injunction was granted on 6th December, 1979, in that application. The order of interim injunction was admittedly served on the second defendant on 12th January, 1980, along with the relevant papers. On 5th March, 1980, suit summons was affixed at the outer door of the premises in question and that is, old No. 23, new No. 9, Venkatesa Naicken Street, George Town, Madras, because, as per the evidence of the bailiff examined in this case as R.W. 1. attempts to serve personally on the second defendant on three different occasions proved futile since he could not be found. On 11th September, 1980, there was no appearance by the defendants and hence, the learned Judge sitting in the Original Side, made the order of interim injunction absolute. Since attempts to serve the defendants personally proved a futile process. Application No. 1324 of 1981 was taken out by the plaintiff for ordering substituted service and prayer (&) in the Judge's summons in the said application runs as follows : -

(b) why this Honourable Court should not be pleased to order substituted service for the defendants 1, 2 and 4 to 9, through publication, in one issue of Malai Murasu and affixture of summons on Court notice board of defendants 1,2 and 6 to 9.

2. This application was ordered and we find from the proceedings of the Assistant 'Registrar (Original Side) of this Court that affixture on the Court notice board was effected on 3rd April, 1981, publication was effected on 8th April, 1981; and affixture at the last known addresses of the defendants concerned was effected on 3rd April, 1981, 25th : May, 1981 and 8th June. 1981. By order, dated 28th July, 1981, made in Application No. 2451 of 1981, the service of suit summons effected by publication and affixture on the Court notice board for defendants 4 and 5 was held sufficient. Since the defendants took no steps to file their written statements, the matter was directed to be posted before Court. On the above basis, the suit was taken up and since there was no appearance by the defendants, an ex parte decree ensued on 12th August, 1981.

3. The second defendant filed on 8th February, 1982, Application No. 441 of 1982 to set aside the ex parte decree, dated 12th August, 1981. The material averments in the affidavit filed in support of this application runs as follows : Under an arbitration-partition arrangement, dated 16th September, 1974, the second defendant was one of the two persons who are liable to pay off the mortgage of the suit property; the second defendant approached Daya Sadhan on 12th January, 1982, asking them to tell him the amount due under the mortgage, so that he could pay off the, amount and discharge the mortgage and redeem/ the property; at that time, he was informed by Daya Sadhan that in the above a suit against the defendants, this Court had executed a sale deed in favour of the plaintiff in the suit and the sale deed had been registered as Document No. 4046 of 1981; since the second defendant had no notice of the suit, he requested his advocate to make a search in the office; it was then found that the suit had been decreed on 12th August, 1981; he was not aware of the passing of the decree in the suit; since no summons had been served on him, he had no knowledge about the above suit and he came to know about the decree having been passed only on 12th January, 1982. According to the second defendant, he had no knowledge about the decree in the suit till 12th January, 1982, and on that basis, he prayed for setting aside the ex parte decree. This application was contested by the plaintiff by pointing out the proceedings of this Court relating to the order of temporary injunction, the service of the order of injunction on 12th January, 1980, the service of the suit summons; by affixture earlier on 5th March, 1980, and the service effected by substituted mode, as stated above, and the plaintiff would further state that after the decree, execution had been levied and it was ordered, directing execution of the sale deed in favour of the plaintiff. The sale deed has been executed, registered in December, 1981, and mutation in Corporation Property Tax registry and other public register had taken place in the name of the plaintiff. The plaintiff would further state that the second defendant was fully aware of the proceedings in the Court and he had knowledge of the decree long anterior to 12th January, 1982. Fakkir Mohammed, J., who heard the matter, on an analysis of the materials placed before him, found no warrant to> accept the case of the second defendant and accordingly, the learned Judge dismissed the application. This appeal is directed against the order of the learned Judge.

4. The ex parte decree was; passed on 12th August, 1981. Under Articles 123 of the Limitation Act, 1963, the time-limit to file an application to set aside a decree passed ex parte, is thirty days, and there are two ways of computing the time. One is from the date of the decree where summons was duly served; and the other is from the date of the knowledge of the decree by the applicant and that would be only where summons was not duly served. The specific case of the second defendant is that summons was not duly served! on him and he came to know about the decree Only on 12th January, 1982. The Explanation to Article 123 of the Limitation Act, 1963, states that for the purpose of the said Article, substituted service under Rule 20 of Order 5 of the Code of Civil Procedure, hereinafter referred to as the Code shall not be deemed to be due service. Prior to the enactment of the Limitation Act, 1963, there was a conflict of decisions as to whether substituted service, even where it was properly ordered and properly served, could be due service, when in fact the defendant was shown to have had so knowledge of the suit and the decree. That controversy has been settled by the present Explanation,. In the present case, the service that was held to be sufficient, on the basis of which the suit came to be disposed of ex parte, was one effected under the substituted mode contemplated under Rule 20 of Order 5 of the Code. Hence, by virtue of the Explanatory such service shall not be deemed to be due service and time will run only from the date of knowledge of the decree by the second defendant. Even where summons was served by other modes, yet, it could be shown to have been, not due service and then also time will run from the date of the knowledge of the decree. ' In the present case, the Explanation to Article 123 comes to the rescue of the second defendant and Cables him to straightway compute time from the date of his knowledge of the decree, without entering into the controversy as to whether there was due service or not. Then, the question- is as to whether the second defendant did come to have knowledge of the decree only on 12th January, 1982, as claimed by him. If there is a failure on the part of the second defendant to substantiate the specific case of his that he came to know about the decree only on 12th January, 1982, then computation of time could not be from that date and if it is to be inferred that the second defendant had knowledge of the (proceedings in the suit and the decree that came to be passed long anterior to 12th January, 1982, then the present application to set aside the ex parte decree must be held to have been filed beyond time and will deserve dismissal.

5. We have already referred to the averments made in the affidavit filed in support of the application where the second defendant claims that only on 12th January, 1982, he came to know about the decree. The second defendant examined himself as P.W. 1 in this matter and we may straightway point out that Ms evidence is highly unsatisfactory and, if we can say so, bristles with unconvincing statements and could not persuade this Court to attach any veracity to the same. according to the second defendant, he had to contact the mortgagee Daya Sadhan to find out the amounts due under the mortgage, so as to enable Mm to pay off the same and redeem the suit property, because this was the order under an arbitration partition arrangement, dated 16 th September, 1974. The affidavit filed in devoid of other relevant particulars apart from a bare statement to the above effect and there is a reply affidavit and even here, the second defendant has not improved the matter. Coming the oral evidence of the second defendant, examined as P.W. 1, he would state that in December, i.1981, he last paid interest to the mortgagee .Daya Sadhan ; at that time, the mortgagee did not tell him about the suit; and when he went on 12th January, 1982, he did not pay any interest to the mortgagee. Though in the affidavit his statement is to the effect that with the intention to carry out the obligations cast upon him under the arbitration- partition arrangement, he approached the mortgagee on 12th January, 1982, in his evidence the second defendant deposed that he went to the mortgagee only on a casual visit ; he went to some other office in that area and while returning, he happened to pass the way where the mortgagee's : office is situate and that was how he came to make the enquiries. He would state that he went to the area to meet one Gopal in Kasi Chetty Street, Madras-1 in connection with his business. In the mortgagee's : office, the second defendant is stated to have met only a clerk of the mortgagee. The second defendant did not know his name. The said clerk is stated to have told the second defendant that the mortgagee had received a notice from the Court stating that the amounts had been deposited into Court and the mortgagee was asked to take the same towards the mortgage dues. The second defendant did not find out the date of that letter. He did not read the contents of that letter. He did not take a copy of that letter., He is stated to have gone and informed his advocate about the matter. The second defendant only gave the suit number to the advocate. The second defendant had already been served with the order of injunction on 12th January, 1980. He had also received the relevant papers along with the order of injunction. He very naively states that his advocate told him that it was only an injunction order and when the suit summons comes, they shall see to it. No counsel worth the name would have made such an advice. Though the second defendant is categoric that he came to know of the decree only on 12th January, 1982, in the light of his own evidence, this categoric statement cannot have any credence at the hands of this Court.

6. It is needless to state that the onus is heavily on the second defendant to show that he came to know about the decree only on 12th January, 1982. An assessment of the evidence in this case leaves no room for doubt in our mind that the second defendant must have had knowledge of the decree not on 12th January, 1982, as claimed by Mm, but even long anterior to that date. Hence, we have to concur with the learned single Judge that the present case of the second defendant cannot have acceptance by this Court. To arrive at this conclusion of ours, we have also examined the materials and the evidence relating to substituted service effected. Though service by substituted mode may fact be due service for the purpose of computation of time under Article 123 of the Limitation Act, 1963, yet, an examination of the proceedings and evidence relating to such service may expose the knowledge on the part of the defendant of the decree anterior to the date on which he claims that he came to know about the decree. We shall now examine this aspect. Substituted service was ordered by three modes, first by affixture on the Court notice board; second by publication ; and third by affixture at the last known place of residence of the second defendant. Neither before the learned single Judge nor before us any attempt was made to demonstrate that there existed no warrant in law and on facts for ordering service by substituted mode. The second defendant, however, endeavoured to show in the course of evidence adduced in the case that even this substituted service was not properly effected and hence, knowledge of the proceedings before Court and of the decree anterior to 12th January, 1982, cannot be imputed to him on the basis of this service or otherwise. As pointed out by us earlier, a regular application was taken out by the plaintiff, Application No. 1324 of 1981, and that was ordered by the Master of this Court. Only pursuant to the said order, service by the three modes was resorted to. With regard to service by affixture on Court notice board and by publication, there was no challenge of the same either before the learned single Judge or before us. The only challenge put forth by the second defendant is with reference to the service by affixture at his last known place of residence. As stated above, the bailiff has been examined as R.W. 1 in this case. He has spoken to the affixture of the suit summons by him at the outer door or premises in question earlier on 5th March, 1980. There is no dispute that the door number of the premises has been changed from No. 25 to No. 9. R.W. 1 stated that he made enquiries with regard to the change in the door number and then only effected the affixture. Hence the change in the door number is not material and we have reason to disbelieve the evidence of R.W. 1 on the question of due affixture. Furthermore, nothing has been brought out in the course of the cross-examination of this witness to substantiate the theory of the second defendant that the service of the suit summons by affixture was in fact nor properly effected and knowledge of the proceedings before Court and of the decree cannot be imputed to him on this basis.

7. It is true that Order 5, Rule 20 (2) of the Code states that service ' substituted by order of Court shall be as effectual as if it had been made on the defendant personally. But this is now subject to the Explanation to the present Article 123 of the limitation Act, 1963, and where an application to set aside the ex pane decree is filed, substituted service under Order 5, Rule 20 of the Code shall not be deemed to be due service. At the same time, it is not possible to lay down that only 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, otherwise duly effected, knowledge is inferrable if the facts and circumstances of the case warrant the same.

8. Our attention has been drawn to a judgment of Ramanujam, J. in Dhanasekaran v. State Sank of India : AIR1977Mad252 , where the learned Judge referred to the judgment of Wallace, J. in Doraiswamy Ayyar v. Balasimdaram Ayyar 52 M.L.J. 477, who held that the word 'duly' in Order 9, Rule 13 of the Code and Article 164 of the Limitation Act, 1908, is not equivalent to 'personally' and that if the trial Court is satisfied that the substituted service effected is sufficient service, then it should (be taken to be a due service and that such service is as effectual as if it had been made on a defendant personally. This proposition now stands qualified by the Explanation to the present Article 123 of the Limitation Act, 1963, and it is no longer possible to countenance substituted service under Order 5, Rule 20 of the Code as due service, when an application to set aside an ex parte decree is filed. Time will run only from the date of knowledge of the decree. It must be remembered that Article 164 of the Limitation Act, 1908 did not contain an Explanation as we now find in, the present Article 123 of the Limitation Act, 1963.

Hence, we are more concerned here with the question of knowledge of the second defendant of the decree, in view of Article 123 of the Limitation Act, 1963, read along with the Explanation thereto. Coming to the question of knowledge of the second defendant of the proceedings in the suit and of the decree, we have found that he had knowledge of the suit, having been served with the order; of injunction on 12th January, 1980. Definitely, by that, he must have had knowledge about the nature of the suit and its details. His explanation that he left the matter at that, without following up the proceedings, is too puerile to be accepted. On 5th March, 1980, suit summons was earlier served by affixture. His evidence before Court with regard to his coming to know of the decree only on 12th January, 1982, is highly unconvincing. On the facts disclosed; it is not possible to accept the bare assertion of ignorance of the decree by the second defendant. Hence, it has to be legitimately held that the second defendant had not only knowledge of the proceedings in the suit but also of the decree long prior to 12th January, 1982. He must have had specific knowledge of the decree passed in the suit and its nature, certainly, thirty days before the date of the present application which, we find, had come to be filed only on 8th February, 1982.

9. Learned Counsel for the second defendant made yet another attempt to advance the cause of his client that even if there had been duo service, yet, the second defendant could seek the indulgence of the Court to set aside the ex parte decree if he makes out that he was prevented by sufficient cause from appearing when the suit was called on for hearing. Before we assess this submission, we would like to recapitulate and reiterate the principles that should govern applications to set aside ex pane decree under Order 9, Rule 13 of the Code read with the Explanation, to Article 123 of the Limitation Act, 1963. Under Order 9, Rule 13 of the Code there are two grounds, placed alternatively, on which an ex parte decree could be set aside. Under the first ground, if it is to be held that the summons was not duly served, taking note also of the Explanation to Article 123 of the Limitation Act, 1963, under which substituted service is no due service at all, the ex parte decree will have to be set aside, provided the applications to set aside the ex parte decree has come to be filed within 30 days from the date of knowledge of the decree. If such an application has come to be filed beyond 30 days from tine, date of such knowledge, then the delay after the said 30 days has got to be explained by making a sufficient cause therefor, under Section 5 of the Limitation Act, 1963. Even it is to be held that the summons was otherwise duly served, of course, taking into consideration the Explanation to Article 123 of the Limitation Act, 1963, which would exclude substituted service from the category of due service, yet, the defendant could show sufficient cause within the meaning of Order 9, Rule 13 of the Code for non-appearance when the suit was called on for hearing. This is the alternative ground. But then, such an application has got to be filed within 30 days from the date of the decree. However, if such an application has come to be filed beyond 30 days from the date of the decree, the delay beyond 30 days will have to be explained, making a sufficient cause therefor within the meaning of Section 5 of the Limitation Act, 1963. It is not necessary to delinate as to what all factors would constitute 'sufficient cause'. It will depend upon the facts and circumstances of each case. In appropriate cases, even if there had been a proper and due service of summons, lack of effective and requisite knowledge of the suit, or of the proceeding or of the decree may constitute sufficient cause. Even in the case dealt with by Ramanujam, J., in Dhamasekaran State Bank of India : (1977)1MLJ271 , the learned Judge, on facts, found that service was effected only by substituted mode the defendant came to have knowledge of the decrees, long after they came to be passed and he, in fact, had no knowledge of the same earlier and the applications having been filed within 30 days from the date of the knowledge, the learned Judge found a justification for setting aside the ex parte decrees. The matter seemed to have come squarely within the ambit of the Explanation to Article 123 of the Limitation Act, 1963, and time was computed from the date of actual knowledge of the decrees. This judgment of the learned Judge cannot be taken to be an authority for any general proposition that where the defendant was served by substituted service and he had no knowledge of the decree, the matter would come within the purview of 'sufficient cause' under Order 9, Rule 13 of the Code. As we pointed out above, time will run from the date of the decree where there had been due service, and 'sufficient cause' under Order 9, Rule 13 of the Code for non-appearance in spite of due service will come into play only after there had been, in fact, due service; and substituted service under Order 5, Rule 20 of the Code is no due service at all as per the Explanation, to Article 123 of the Limitation Act, 1963. Hence, the matter could be dealt with only from the point of view of 'date of knowledge of the decree' under Article 123 of the Limitation Act, 1963, read with the Explanation thereto. However, if summons was otherwise duly served, yet, lack of effective and requisite knowledge of the hearing of the suit, or of the proceeding, or of the decree that had come to be passed ex pane, may go to make up 'sufficient cause' in appropriate cases, depending upon the facts and circumstances of the case.

10. In the present case, the question of sufficient cause may not arise because, service having had been effected by substituted mode, It was not due (service at all as per the Explanation to Article 123 of the Limitation Act, 1963, and time will run only from the date of knowledge of the decree. Even otherwise, the sufficient cause projected is on the allegation that the second defendant had no knowledge of the suit or of the decree anterior to 12th January, 1982, and that was how he was prevented from appearing when the suit was called on for hearing. This so called alternative basis of sufficient cause is being spinned within the very same vicious circle of lack of knowledge anterior to 12th January, 1982. We have found that this cause of the second defendant deserves no acceptance. To say the least, this case of the second defendant appears to be absolutely false. We have found that the onus on the second defendant has not been discharged at all. In the said circumstances, we do not find any merit in this appeal and accordingly, this appeal is dismissed. There will be no order as to costs.


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