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2009 DIGILAW 364 (AP)

K. Naveen Kumar v. M. Suresh Babu

2009-06-10

G.ROHINI

body2009
ORDER The Revision petitioner is the defendant in O.S.No.328 of 2002 on the file of the Court of the Principal Junior Civil Judge, Anantapur, which was decreed ex parte by judgment dated 21.10.2002. 2. This Civil Revision Petition is directed against the judgment dated 15.07.2008 in C.MANo.5 of 2007 on the file of the Court of I-Add!. District Judge, Anantapur, whereunder the order passed by the trial Court dismissing the defendant's application under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree in O.S.No.328 of 2002 was confirmed. 3. The facts, in brief, are as under: The respondent/plaintiff filed O.S.No.328 of 2002 for specific performance of the Agreement of Sale dated 18.04.1994 executed by the defendant in respect of the suit schedule property and to put him in possession of the said property after evicting the tenants therefrom. The said suit was decreed ex parte by judgment dated 21.10.2002. Pursuant thereto, the plaintiff filed E.P.No.12 of 2003 for execution of the decree and consequently a Registered Sale Deed dated 26.09.2003 was executed through the Court, and possession was also delivered to the plaintiff. 4. While so, on 01.12.2004 the defendant filed I.A.No.140 of 2005 under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree dated 21.10.2002 on the ground that the suit summons were not served on him. It was also pleaded that he came to know of the ex parte decree only in the month of November, 2004. The said application was opposed by the plaintiff denying the plea that the defendant was not served with suit summons and that he had no knowledge of the ex parte decree. The Court below, after hearing both the parties, by order, dated 27.01.2007, dismissed I.A.No.140 of 2005. Aggrieved by the same, the defendant/ Revision petitioner filed C.MANo.5 of 2007 in the Court of the I-Addl. District Judge, Anantapur. The said Appeal was dismissed by judgment dated 15.7.2008 thereby confirming the order of the trial Court dated 27.01.2007. Hence, the present Civil Revision Petition by the defendant. 5. I have heard the learned counsel for both the parties. 6. The specific plea of the defendant in I.A.No.140 of 2005 was that the suit summons were not served on him. The said Appeal was dismissed by judgment dated 15.7.2008 thereby confirming the order of the trial Court dated 27.01.2007. Hence, the present Civil Revision Petition by the defendant. 5. I have heard the learned counsel for both the parties. 6. The specific plea of the defendant in I.A.No.140 of 2005 was that the suit summons were not served on him. It was also pleaded that he left Anantapur in the month of November, 1994 and since then he was staying at Visakhapatnam and recently six months back he had shifted to Hyderabad. It was also pleaded that he came to Anantapur for Deepavali in the month of November, 2004 to see his ailing mother and that was his first visit to Anantapur after he left Anantapur in the year 1994. During his stay at Anantapur, on 12.11.2004 he came to know about the ex parte decree dated 21.10.2002 in O.S.No.328 of 2002 and immediately within 30 days from the date of his knowledge he filed I.A.No.140 of 2005 under Order 9 Rule 13 of C.P.C. on 01.12.2004. It was also contended that he did not execute any Agreement of Sale in favour of the plaintiff at any point of time and the suit agreement of sale was a rank forgery and the suit was filed by the plaintiff taking advantage of his absence from Anantapur with an intention to grab the suit schedule property. It was also alleged that the plaintiff had deliberately taken suit summons to a wrong address at Chennai though he never resided at Chennai at the relevant point of time. It was also alleged that there was no postal acknowledgement with his signature and that the suit was decreed ex parte without service of summons on him. 7. The plaintiff filed a counter stating that the defendant had refused to receive the suit summons when they were tendered to him and that the defendant's allegation that he did not receive the suit summons and there was no acknowledgement in the suit bundle was not correct. 7. The plaintiff filed a counter stating that the defendant had refused to receive the suit summons when they were tendered to him and that the defendant's allegation that he did not receive the suit summons and there was no acknowledgement in the suit bundle was not correct. The allegation made by the defendant that the suit summons were sent to a wrong address deliberately was denied and it was stated that the defendant failed to contest even the execution petition and the possession of the suit schedule property was also delivered to him through Court and therefore the petition filed under Order 9 Rule 13 of CPC at a belated stage was not bona fide apart from being barred by limitation. 8. To substantiate his case, the defendant deposed as P.W.1 and Exs.A-1 to A-5 documents were marked on his behalf. The plaintiff did not choose to adduce any evidence on his behalf. However, the postal acknowledgment of the suit summons in O.S.No.328 of 2002 was marked as EX.C-1 by the Court itself and on a perusal of the same the trial Court found that whereas the defendant's name was K. Naveen Kumar, EX.C-1 was addressed to one Jangam Ramanna s/o. Chandrayudu, Bukkapatnam, Anantapur and it contained the signature of one Ramanna in the receipt column. It was also found that in the cause title the defendant's address was shown as 0-18, 2nd Floor, 9th Street, Paidipudi Nagar, Near Madras Medical Mission, Anna Nagar, West Chennai, Tamil Nadu and batta was also paid to the said address on 3.6.2002. Since no explanation could be offered by the plaintiff as to why suit summons were sent in the name of Jangam Ramanna, Bukkapatnam, Anantapur, and no other material was available in the record to show that the suit summons were served on the defendant to the address shown in the cause-title, the trial Court recorded a finding that the suit summons were not served on the defendant. 9. 9. However, while disbelieving the plea of the defendant that he had no knowledge of the ex parte decree till November, 2004, the trial Court held that the period of limitation of 30 days had begun to run from the date of passing of the decree itself and thus there was inordinate delay of 740 days in filing the application under Order 9 Rule 13 of C.P.C. Accordingly I.A.No.140 of 2005 was dismissed as barred by limitation. 10. Before the lower Appellate Court, the plaintiff filed the certified copy of the delivery proceedings in E.P.No.12 of 2003 as EX.B-1 which revealed that the suit property was delivered to the plaintiff through the Court on 28.11 .2003. While taking the said fact into consideration, the lower Appellate Court held that the delivery of property to the plaintiff itself was a sufficient notice of the decree and therefore the defendant's plea that he had no knowledge of the ex parte decree till November, 2004 cannot be believed. Accordingly, it was concluded that the defendant was bound to file an application under Section 5 of the Limitation Act to condone the delay and in the absence of such application, the trial Court had rightly dismissed the defendant's application to set aside the ex parte decree. 11. In this Revision Petition, it is contended by the learned counsel for the petitioner that having found that the suit summons were not served on the defendant, the Courts below were not justified in holding that the application under Order 9 Rule 13 of C.P.C. filed within a period of 30 days from the date of knowledge was barred by limitation. It is also contended that the fact that the suit summons were sent to a wrong address itself is sufficient to hold that the plaintiff played fraud on the Court and therefore on that ground alone the Courts below ought to have set aside the ex parte decree. It is further contended that since the finding recorded by the trial Court that the defendant had knowledge about the pendency of the suit was based on mere surmises and conjectures, the Appellate Court committed an error in confirming the same without properly appreciating the material available on record. 12. It is further contended that since the finding recorded by the trial Court that the defendant had knowledge about the pendency of the suit was based on mere surmises and conjectures, the Appellate Court committed an error in confirming the same without properly appreciating the material available on record. 12. On the other hand, the leaned counsel for the respondent/plaintiff while referring to the 2nd proviso to Order 9 Rule 13 of C.P.C., sought to justify the orders under Revision. 13. Order 9 Rule 13 of C.P.C. runs as under: Order 9 Rule 13. Setting aside decree ex parte against defendant In any case in which a decree is passed ex pare against a defendant, he may apply to the court by, which the decree was passed for an Order to set aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: PROVIDED that where the decree; is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also: PROVIDED FURTHER that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree." 14. A plain reading of the above provision shows that an ex parte decree is liable to be set aside if the Court is satisfied that the suit summons were not duly served on the defendant. A plain reading of the above provision shows that an ex parte decree is liable to be set aside if the Court is satisfied that the suit summons were not duly served on the defendant. However, as per Article 123 of the Schedule to the Limitation Act, 1963, such an application has to be filed within 30 days and the time from which the period of limitation begins to run is as under: "The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree." 15. In the instant case, since a finding has been recorded that the summons were not served on the defendant, the latter part is attracted. consequently the period of limitation begins to run when the defendant had knowledge of the decree. 16. It is the case of the defendant that he left Anantapur in the month of November, 1994 and since then he was staying at Visakhapatnam and that he had the knowledge of the decree only on 12.11.2004 when he visited Anantapur to see his ailing mother. There can be no dispute that the burden lies upon him to establish the said fact. To substantiate his case, the defendant while deposing as P. W.1 produced Exs.A-1 to A-5 documents. 17. In his counter the plaintiff did not contradict the defendant's specific plea that he was all through residing at Visakhapatnam nor there was any oral or documentary evidence on his behalf before the trial Court. 18. However, the certified copy of the delivery warrant and Amin report in E.P.No.12 of 2003 was marked on his behalf as EX.B-1 before the lower Appellate Court. The said document reflected that the suit property was delivered to the plaintiff through Court on 28.11.2003. 19. Having regard to the said fact, the lower Appellate Court opined that delivery of property to the plaintiff was a sufficient notice of passing of decree and therefore knowledge can be imputed to the defendant much prior to 30 days of filing the application under Order 9 Rule 13 of C.P.C. Thus it was concluded that the application was barred by limitation and the trial Court's order was confirmed. 20. As noticed above, there was absolutely no rebuttal evidence before the trial Court contradicting the defendant's plea that he had knowledge of the ex parle decree only on 12.11.2004. 20. As noticed above, there was absolutely no rebuttal evidence before the trial Court contradicting the defendant's plea that he had knowledge of the ex parle decree only on 12.11.2004. However the trial Court while going into the merits of the case and making certain irrelevant remarks against the conduct of the defendant concluded that as the defendant failed to make enquiries with his relatives and family members, it must be deemed that he had notice about the pendency of the suit and therefore limitation started running from the date of decree itself. The date of knowledge is a question of fact and has to be ascertained on appreciation of the evidence produced by the parties. However the trial Court had strangely recorded a finding on mere surmises and conjectures and had drawn an adverse inference against the defendant on the ground of his failure to make enquiries with his family members. On the face of it, the said procedure followed by the trial Court was contrary to law and the finding recorded was erroneous. 21. However the finding of the trial Court as to the date of knowledge was slightly modified by the lower Appellate Court and it was held that the date of delivery of possession in the execution proceedings shall be taken as the date of knowledge. Hence, the only question that arises for consideration is whether the said finding of lower Appellate Court is sustainable in law. 22. Admittedly the suit property is situated in Anantapur and the same has been in possession of a tenant. Even Ex. B-1 delivery warrant - shows that the possession was taken from the tenant. The record in E.P.No.12 of 2003 was called for from the executing court and a perusal of the same revealed that notice was ordered on 06.01.2003 through Court and registered post returnable by 11.03.2003. The notice was sent by registered post to the address bearing Door No.18, 9th Street, Padipuri Nagar, Near Madras Medical Mission, Anna Nagar, West Chennai, and the same was returned with a postal endorsement 'refused' dated 28.01.2003. 23. On 11.03.2003 it was recorded by the executing court that the notice sent by registered post was returned as refused by the judgment-debtor and notice through Court at Chennai was not returned and accordingly awaiting notice the matter was adjourned to 4.4.2003 and again thereafter the matter was adjourned to 6.5.2003. 23. On 11.03.2003 it was recorded by the executing court that the notice sent by registered post was returned as refused by the judgment-debtor and notice through Court at Chennai was not returned and accordingly awaiting notice the matter was adjourned to 4.4.2003 and again thereafter the matter was adjourned to 6.5.2003. On 6.5.2003 fresh notice was ordered through Court and registered post. The record shows that the notice was sought to be served through the Court of Small Causes, Madras and it was recorded by the concerned officer of the said Court on 2.6.2003 as under: "On 13.5.2003 and 20.5.20031 went to the address given herein. On an enquiry that the respondent was out of station and their relative was present there. I told the contents of the notice to them. They said the said person (respondent) is out of station. So it was not received and refused by them. Hence, I affixed the copy of the notice on the door." 24. On 7.7.2003 it was recorded by the executing Court that the notice sent by Court and registered post were returned as refused and the judgment-debtor was called absent and accordingly he was set ex parte. The matter underwent adjournments for depositing the non-judicial stamps and necessary further steps and ultimately on 26.9.2003 the document was sent for registration. On 29.10.2003 the registered document was received from the Sub-Registrar's Office and delivery warrant was also issued. Pursuant thereto, property was delivered on 27.11.2003 and recording the same the E.P. was closed on 4.12.2003. 25. The delivery warrant shows that the delivery of possession was effected in the presence of the village elders and the same was notified in the village by tom-tom. There was also an acknowledgement given by the decree-holder stating that he was put in possession on 27.11.2003. Either EX.B-1 delivery warrant or the acknowledgement given by the decree-holder did not reveal the name of the person who was in possession of the property and there was absolutely no material to show that the possession was taken from the tenant of the defendant. Neither the tenant from whom the possession was taken nor any other person present at the time of delivery of possession was examined on behalf of the plaintiff/decree-holder to show that the defendant was aware of the delivery proceedings. 26. Neither the tenant from whom the possession was taken nor any other person present at the time of delivery of possession was examined on behalf of the plaintiff/decree-holder to show that the defendant was aware of the delivery proceedings. 26. As could be seen from the record, the report of the officer of the Court of Small Causes, Madras, did not even reveal the name of the person who was present at Door NO.18, 9th Street, Padipuri Nagar, Near Madras Medical Mission, Anna Nagar, West Chennai, and whether he was empowered to accept the service on behalf of the defendant. Even the notice which was sent through registered post and returned with a postal endorsement 'refused' did not contain any details to show that the same was tendered to the petitioner and was refused. It is also relevant to note that the defendant in his affidavit in I.A. No.140 of 2005 as well as his evidence categorically stated that he never resided at Chennai at the address shown in the cause title. In the absence of any evidence on behalf of the plaintiff contradicting the version of the defendant, the lower Appellate Court was not justified in holding that the defendant can be imputed knowledge on the date of delivery of possession. The lower Appellate Court arrived at such conclusion merely on the ground that it was not pleaded by the defendant that the notice in execution proceedings was not served on him. The said conclusion apparently was not supported by any material available on record and the lower Appellate Court appears to have been carried away with the fact that the possession of the suit property was already delivered to the decree-holder and the ex parte decree was fully executed. 27. For the aforesaid reasons, I am of the opinion that both the Courts below have misdirected themselves in law in holding that I.A.No.140 of 2005 was barred by limitation on the mere assumption that the defendant had knowledge of the ex parte decree more than 30 days before the application under Order 9 Rule13 of C.P.C. Such a conclusion without recording a clear finding as to the date of knowledge of the defendant about the ex parte decree is erroneous and unsustainable. 28. 28. Accordingly, the order of the trial Court as confirmed by the lower Appellate Court is hereby set aside and the Civil Revision Petition is disposed of with a direction to the trial Court to consider I.A.No.140 of 2005 afresh after giving an opportunity to both the parties to lead fresh evidence, if any, and then pass appropriate orders afresh in accordance with law. No costs.