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Andhra High Court · body

2002 DIGILAW 1215 (AP)

M. Narasimha Reddy v. Begari Samuel

2002-10-09

D.S.R.VERMA

body2002
D. S. R. VARMA, J. ( 1 ) THIS revision is filed challenging the order and decree dated 8-11-2001 passed by the court of Principal Junior Civil Judge, hyderabad West and South, Rangareddy district in I. A. No. 2087/2000 in O. S. No. 491/1999. By the impugned order, the court below allowed the application filed by the defendant under Section 5 of the Indian limitation Act and condoned the delay of 260 days in presenting the petition under order 9 Rule 13 C. P. C. to set aside the ex parte decree dated 23-12-1999 passed in o. S. No. 491/1999. Aggrieved by the same, the plaintiffs in the suit filed this revision petition. ( 2 ) FOR the sake of convenience, the parties shall be referred to as plaintiffs and defendant. ( 3 ) THE brief facts are that the plaintiffs filed the suit and obtained ex parte decree. Subsequently by order dated 25-2-2000 the court below also gave police protection on an application made by the plaintiffs. Coming to know about the institution of the suit and also the police protection given to the plaintiffs, the defendant averred in the present I. A. that he was not residing at kothwalguda village and shifted to balanagar, due to health problems; that during middle of July 1999 he had not received any summons addressed to him at kothwalguda village, nor he has refused any summons; that he was a regular subscriber of Eenadu newspaper; that therefore he had no knowledge of the publication of the notice in Andhra Prabha; and that he was not aware of the ex parte decree or order of police protection passed in favour of the plaintiff till the police came to the suit site on 27-6-2000 and asked his nephew to vacate the suit site. ( 4 ) THEREFORE, according to the defendant he came to know about the ex parte order and police protection only on 27-6-2000 and from that date within the statutory limitation, he filed the present petition under Order 9 Rule 13 C. P. C. for setting aside the ex parte decree. When the office took an objection, as an abundant caution he filed a petition under Section 5 of the limitation Act. When the office took an objection, as an abundant caution he filed a petition under Section 5 of the limitation Act. ( 5 ) THE court below upon hearing the I. A. filed under Section 5 of the Limitation Act and considering the material available on record allowed the same after imposing costs of Rs. 250. 00. Aggrieved by the same the plaintiffs in the suit filed the present revision. ( 6 ) THE learned counsel for the plaintiffs strongly contended that the delay ought not have been condoned as a matter of routine. He relied on a judgment of the learned single Judge of this Court (Justice p. S. Narayana) in Lala Radhashyam Jaiswal, hereditary Trustee of Lala Temple v. M/s. Tiger rolling Shutters wherein it was held that mere filing of an affidavit is no evidence and the sufficieat cause must be proved by adducing necessary evidence. For this proposition the learned single Judge relied on a judgment of the Apex Court in Sudadevi v. Narayana arid held at paragraph No. 11 as under: apart from it, mere filing an affidavit is no evidence. In Sudadevi v. Narayana ( AIR 1988 SC 1381 ) the Apex Court held that affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason the Court passes an order under order 19 Rules 1 and 2 of C. P. C. Further, the service by affixture and substituted service are all acts done by the officers of the Court and there is a presumption that the official acts are done properly. It is no doubt true that in such cases it is always desirable to examine the Process Server or the bailiff so that there can be opportunity for the purpose of cross-examination. The learned Judge also gave emphasis to the language incorporated under Order 9 rule 13 C. P. C. According to the learned single Judge, the words "that he was prevented by any sufficient cause from appearing when the suit was called on for hearing", are notable. The learned Judge also gave emphasis to the language incorporated under Order 9 rule 13 C. P. C. According to the learned single Judge, the words "that he was prevented by any sufficient cause from appearing when the suit was called on for hearing", are notable. Hence it was observed that the explanation relating to existence or non- existence of sufficient cause is an essential condition for exercising power under order 9 Rule 13 C. P. C. Having regard to the other provisions of law under Order 7 rule 1 C. P. C. and also Order 5 Rule 20 c. P. C. the learned Judge further observed at paragraph No. 12 as under:. . . . The series of events and the conduct of the parties if taken into consideration and also in the light of the legal position discussed supra, the parties should have been diligent in letting in proper evidence instead of relying on a technical ground. Unfortunately much water had flown in between and it is represented that possession had been taken and the respondent is trying to have restitution of the property. In the facts and circumstances of the case, since the impugned order was made without appreciating all the relevant facts and circumstances and without any legally acceptable evidence on record except the affidavit, counter-affidavit and reply affidavit, I deem it fit to make the following order:. . . The matter is remitted back to the court below for the purpose of fresh disposal in accordance with law. The learned single Judge had further taking into account the fact of filing an application for condoning the delay apart from a petition under Order 9 Rule 13, held that the respondent therein was not definite of his stand. A careful consideration of the facts and circumstances of the above case referred to (supra) reveals that the learned single judge had discussed elaborately the scope of order 9 Rule 13, Order 5 Rule 20 of C. P. C. and also Article 123 of the Limitation Act. ( 7 ) IT is to be noted from the facts of the case that the learned Judge passed the order on an application under Order 9 Rule 13 of c. P. C. , but not on the application filed for condonation of delay under Section 5 of the limitation Act. ( 7 ) IT is to be noted from the facts of the case that the learned Judge passed the order on an application under Order 9 Rule 13 of c. P. C. , but not on the application filed for condonation of delay under Section 5 of the limitation Act. ( 8 ) FURTHER it has to be noted that the factors that may fall for consideration while dealing with an application under Section 5 of the Limitation Act and application under order 9 Rule 13 of C. P. C. may be one and the same. Equally so on some occasions, the reasons for filing an application under section 5 of the Limitation Act might be different from the reasons for filing an application under Order 9 Rule 13 C. P. C. Therefore, respective scopes of applications filed under Section 5 of the Limitation Act and Order 9 Rule 13 C. P. C. are different and distinct, if the explanations in the said petitions are different. ( 9 ) THE observations made in Sudadevi s case (supra), which were extracted by the learned single Judge at paragraph No. 11 of the judgment would reveal that the Apex court observed that service by affixture and substituted service are all acts done by the officers of the court and there is a presumption that the official acts are done properly and in that context. Their lordships of the Apex Court further observed that in such cases it is always desirable to examine the Process-Server or the bailiff, so that there could be opportunity for the purpose of cross-examination. From the above observations of the Apex Court it is further clear that examination of the witnesses is only desirable in cases of substituted service. But it was not held that examination of the witnesses or the Process server or the bailiff is essential. The expression "desirability" is only depending upon the facts and circumstances of the case. ( 10 ) THE learned single Judge in Lala radhashyam s case (supra) having taken into account all other factors including the fact of filing of a petition under Section 5 of the Limitation Act, held that examination of the witnesses was required and accordingly remitted the matter back and in the facts and circumstances of that case, the judgment of the learned single Judge is unexceptionable. ( 11 ) IN the instant case, the significant factor to be noted is that after the suit was instituted, suit summons could not be served. After being satisfied, the court below exercising the jurisdiction under Order 5 rule 20, ordered service by advertisement in telugu Newspaper Andhra Prabha. In spite of that the defendant did not attend the court on 23-12-1999 and on that day he was set ex parte and consequently ex parte decree was passed. ( 12 ) THE contention of the defendant was that he was not in the village of Kotwalguda, and he shifted to Balanagar due to health problems since July, 1999. Therefore, he could not receive any summons at kothwalguda, nor he refused any summons. He further stated that he was the subscriber of Eenadu newspaper and hence he had no occasion to see Andhra Prabha newspaper and only when the police came to the suit land on 27-6-2000, with an order of police protection, he came to know about the ex parte decree against him and thereafter he filed an application under Order 9 Rule 13 c. P. C. within the prescribed period of limitation. When the office had taken an objection, the defendant filed a petition under Section 5 of the Limitation Act as an abundant caution. In similar circumstances an occasion had arisen for a Division Bench of this Court in M. A. Qader v. MD. Azmat Ali to deal with the aspect of condonation of delay in rent control proceedings. Their lordships at paragraph No. 10 observed as under: 10. . . . . . . . In the present case, LA. No. 827/1983 was filed after the period of limitation. But it was averred in the affidavit filed in support of the petition that the summons have not been duly served and as such, the respondent was not present when the case was posted for hearing and that he came to know of the ex parte decree only when possession was taken in execution. The court went into the matter and found that the summons were not duly served. Non-service of the summons was the reason both for the absence of the party on the date when the ex parte decree was passed and also for not preferring the application to set aside the ex parte decree within the specified time. The court went into the matter and found that the summons were not duly served. Non-service of the summons was the reason both for the absence of the party on the date when the ex parte decree was passed and also for not preferring the application to set aside the ex parte decree within the specified time. Where the grounds for both the reliefs are the same, it is not necessary that the separate application should be filed to condone the delay. The power is vested in the court and the satisfaction is that of the court. If there is sufficient material before the court from which satisfaction can be arrived at, the court can admit the petition even after the period of limitation. Section 5 of the Limitation act does not in terms say that a separate application should be filed. (Emphasis supplied) from the above it is clear that when the reasons shown in the affidavits filed in support of the applications filed under order 9 Rule 13 and under Section 5 of the limitation Act, are one and the same, no separate application is required to be filed under Section 5 of the Limitation Act and it is a matter of satisfaction of the court to exercise its jurisdiction basing on the facts and circumstances before it. ( 13 ) IN the instant case, the court below further gave a finding upon the appreciation of the material available on record that there was no proper service of summons. Whether it is desirable to ask the parties to adduce i oral or documentary evidence is always within the discretion of the trial court. Only when the court is of the opinion that the averments made in the affidavit are not sufficient, then it is for the trial court to direct the parties to adduce oral or documentary evidence. ( 14 ) IT is to be seen further that it is recorded by the court below that the summons were returned unserved on the ground that the defendant was not available. It was also recorded by the court below that the Process Server had reported that the defendant was not residing in the said village and that there was no proof that the defendant avoided service. It was also recorded by the court below that the Process Server had reported that the defendant was not residing in the said village and that there was no proof that the defendant avoided service. It was further recorded by the trial court that for the first time when the suit was posted for appearance of the defendant, it was reported that the defendant was not living in the address. Upon such representation made by the counsel for the plaintiff, steps were ordered. ( 15 ) NOW it has to be examined what is the effect of substituted service under Order 5 rule 20 C. P. C. and Article 123 of the limitation Act, which relates to this issue. Order 5 Rule 20 deals with the powers of the court to order service of suit summons by affixing a copy thereof in some conspicuous place in the court-house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. Article 123 of the limitation Act is to the following effect: to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation - For the purpose of this article substituted service under rule 20 of Order V of the Code of Civil procedure, 1908 shall not be deemed to be due service. From the above Explanation to Article 123 it is clear that the substituted service under order 5 Rule 20 C. P. C. shall not be deemed to be a due service. But the learned single judge of this Court in Lala Radhashyam s case (supra) relying on a Division Bench judgment of the Madras High Court in ramalingam v. Bhagwandas Mahesh Kumar maheswar, Hindu Undivided Family by Kartha> bhagwandas held at paragraph No. 10 as under:. . . . In fact, the Division Bench, while deciding the matter had clearly stated dealing with the aspect of service effected by substituted service that 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 and even from service by substituted mode knowledge is inferable if the facts and circumstances warrant it. From the above, the effect of the observations of the Division Bench of the madras High Court in my view appears to be that substituted service shall not be deemed to be due service; some times by the conduct of the parties, the service can be inferred, depending upon the facts and circumstances, if warranted. ( 16 ) IN the present case, as already recorded, the court below found from the docket that the plaintiff himself reported to the court that the defendant was not available in the village and at his instance only substituted service by way of publication in andhra Prabha was ordered and the defendant in the affidavit filed in support of the present LA. has categorically stated that he was not residing in kotwalguda and shifted to Balanagar and that he was the subscriber of Eenadu and therefore he had no occasion to see the publication in Andhra Prabha. These facts reveal that the plaintiff himself had the knowledge that the defendant was not available in the village as on the date of filing of the suit. That was supported by the report of the Process Server, who endorsed while returning the summons that the defendant was not available in the village. ( 17 ) THE only disputed question now remains is whether the defendant had access to Andhra Prabha newspaper or not. I do not think that any evidence can be adduced in this regard and even if evidence is permitted to be let in, it can only be oral evidence and no rebuttal evidence also is possible and it will be only oath against oath. Therefore, in my considered view it is difficult to draw any inference that the defendant had the knowledge of ex parte decree and hence there are no warranting circumstances to ask the parties to adduce evidence in this regard. ( 18 ) IN such a case I am of the further view that Explanation to Article 123 of the limitation Act read with Rule 20 of Order 5 alone would come into operation. The explanation to Article 123 is a pecific provision, which is mandatory in nature. ( 18 ) IN such a case I am of the further view that Explanation to Article 123 of the limitation Act read with Rule 20 of Order 5 alone would come into operation. The explanation to Article 123 is a pecific provision, which is mandatory in nature. But however in exceptional circumstances or if the court feels, basing on facts and circumstances, including the conduct of the party, draw an inference regarding the service, which even as per the observations of the learned single Judge in the judgment referred to (supra), is a rare phenomena. In other words such an inference cannot be drawn, though permissible, in normal circumstances. ( 19 ) THEREFORE in my view though an inference can be drawn in the facts and circumstances, where it appears to the Court that the defendant is deliberately pleading ignorance of the knowledge of the proceedings and trying to take advantage of the Explanation to Article 123 of the limitation Act, the Court may in its discretion call upon the parties to adduce oral evidence and such jurisdiction must be exercised sparingly. ( 20 ) AGAIN coming to the case on hand, non-availability of the defendant as on the date of filing of the suit or as on the date of hearing of the suit, is not in dispute. In such a case, the Explanation to Article 123 of the limitation Act, can be made imperatively applicable. ( 21 ) FURTHER the Hon ble Supreme Court in the decision reported in N. Balakrishnan v. M. Krishnamurthy held that when the court below accepts the explanation and condones the delay, normally the superior courts should not disturb such finding, much less in revisional jurisdiction, unless the discretion exercised by the court below is on untenable grounds or arbitrary or perverse. It further held that the primary duty of the court is to adjudicate the dispute between the parties and to advance substantial justice. The relevant excerpts of the judgment of the Apex Court are extracted as under: "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior. court to come to its own finding even untrammelled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. " (Emphasis supplied) ( 22 ) THE further question which incidentally falls for consideration is whether in the instant case, a petition under section 5 of the Limitation Act is necessary or not. In view of the law laid down by a division Bench of this Court in M. A. Qader s case (supra), the observations of which are already extracted above, it is not necessary in fact in the present case to file a petition under Section 5 of the Limitation act, inasmuch as the grounds in the application under Order 9 Rule 13 C. P. C. and the application under Section 5 of the limitation Act are one and the same i. e. , non-service of notice. ( 23 ) FOLLOWING the above decisions and also in view of the foregoing discussion, I do not find any merit in the revision petition and the same is accordingly dismissed. No costs.