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2010 DIGILAW 403 (GAU)

Sanku Prakash v. V. K. Verghese

2010-06-03

ARUN CHANDRA UPADHYAY

body2010
JUDGMENT Arun Chandra Upadhyay, J. 1. This appeal is directed against the order dated 20.08.2009, passed by the learned Additional District & Sessions Judge (Fast Track Court), Papum Pare District, Yupia, Arunachal Pradesh, in Review Petition No. 12 of 2009, whereby the prayer of the petitioner for setting aside the ex-parte decree passed in Money Suit No. 01 of 2008 (FTC) was rejected. The short facts, leading to the filing of this appeal, may be narrated, as follows: A money suit was initially filed by the plaintiff/respondent, in the Court of Deputy Commissioner, Papumpare District, Yupia, for realization of a sum of Rs. 4,25,500/- (Rupees four lakhs twenty five thousand and five hundred), being the loan amount with interests thereon given to the defendant/appellant. The plaintiff/respondent and the defendant/appellant both being resident of Papumpare District of Arunachal Pradesh, originally belonged to the state of Kerala and as such they were known to each other. 2. The defendant/appellant approached the plaintiff/respondent on several occasions for financial help. Accordingly, the plaintiff/respondent advanced loan to the defendant/ appellant seeing his financial hardship and further considering that the defendant/ appellant hailed from his own State. Accordingly, the defendant/appellant, executed promissory note on 12.10.2000 for a sum of Rs. 40,000/- (rupees forty thousand) and on 20.12.2001 for a sum of Rs. 70,000/- (rupees seventy thousand), promising to pay back the aforesaid amount of Rs. 1,10,000/- (Rupees one lakh ten thousand) to the plaintiff/ respondent on demand. The defendant/appellant allegedly did not pay back the loaned amount as promised in spite of repeated requests and approaches and instead issued cheques in favour of the plaintiff/respondent from his account bearing No. 543 of the Central Bank of India, Itanagar Branch, vide Cheque Nos. (i) 021341 dated 28.02.2002, (ii) 021342 dated 28.04.2002 and (iii) 021343 dated 28.04.2002, respectively; however, all the cheques, so issued by the defendant/appellant, bounced in the bank due to non-availability of fund in the account of the defendant/appellant. In spite of bouncing all the cheques so issued by the defendant/appellant, the plaintiff/respondent made a humble request to the defendant/appellant to repay the borrowed amount to the plaintiff/ respondent but the defendant/appellant did not pay heed to such requests. 3. However, the plaintiff/respondent failed to repay the loan, and allegedly by taking undue advantage of the plaintiff/respondent's, old age, threatened not to return the borrowed amount. 3. However, the plaintiff/respondent failed to repay the loan, and allegedly by taking undue advantage of the plaintiff/respondent's, old age, threatened not to return the borrowed amount. Thus, the plaintiff/respondent filed a money suit on 24.07.2006 in the Court of Deputy Commissioner, Papumpare District for realization of the principal with interests amounting to Rs. 4,25,500/-. Subsequently the plaintiff/respondent filed a misc. case praying for withdrawal of the money suit with liberty to file a suit afresh. The learned Addl. District Judge, Yupia allowed the prayer vide order dated 01.04.2008. 4. The plaintiff/respondent once again filed a Money Suit No. 30 of 2008 in the Court of Deputy Commissioner, Papumpare District, on the same cause of action, for realization of the loan amount with interest thereon amounting to the tune of Rs. 5,50,500/- from the defendant/appellant. The suit was transferred to the Court of the Additional District & Sessions Judge, FTC, Yupia, for disposal, by the Deputy Commissioner, Papum Pare District, Yupia, Arunachal Pradesh, since notification for separation of judiciary from executive was made in the meantime, in the State of Arunachal Pradesh. 5. The Court of the learned Additional District Judge, FTC, Yupia, on receiving the records of Money Suit aforesaid, registered it on 18.07.2008, as Money Suit No. 01 of 2008, and thereafter, issued notice upon the defendant/appellant for his appearance. The notices could not be served by the Postal Department either because the addressee was not known or else the addressee was out of station. On such failure to serve the notices issued upon the defendant/appellant, the learned counsel for the plaintiff/respondent orally apprised learned Court below that the defendant/appellant was the owner of M/s. Durga Engineering, located at 'A' Sector, Naharlagun. Accordingly, the learned Court below allowed publication of notice in the local newspaper to compel his appearance in the Court. The date for appearance of the defendant/appellant was fixed on 18.12.2008 at 10 a.m. and the said notice was published on 02.12.2008 in the local newspaper called as 'The Echo of Arunachal' i.e. by giving 16 days time. Accordingly, the learned Court below allowed publication of notice in the local newspaper to compel his appearance in the Court. The date for appearance of the defendant/appellant was fixed on 18.12.2008 at 10 a.m. and the said notice was published on 02.12.2008 in the local newspaper called as 'The Echo of Arunachal' i.e. by giving 16 days time. But the defendant/appellant remained absent on the date fixed and thus on 18.12.2008 the learned Court below passed the following order:- "Upon hearing the learned counsel of the plaintiff and also after having careful consideration of the available materials on record, I am well convinced and satisfied that the defendant has been remaining absent despite repeated notices issued from this Court. And, therefore, I am of the view to proceed the case ex-parte keeping in mind and also in view that the case be not delayed for its disposal for waiting me appearance of defendant. Accordingly the ex-parte will be taken up on next date fixed on 22nd January and the same has been duly informed to the plaintiff and his counsel. Be that as it made the learned counsel for the plaintiff being asked to take steps to causing service of notice to the defendant. Till then the case is adjourned." 6. On 22.01.2009 when the matter was taken up for ex-parte hearing the defendant/ appellant, who was out of station due to sudden demise of his father-in-law, instructed his lawyer over telephone to obtain a convenient date to enable him to appear before the Court to contest the suit by filing written statement. The learned Court below rejected the prayer out-and-out. The relevant extract of the said order is reproduced below:- "22.01.2009 Mr. M. Batt has submitted an application informing the Court that the defendant has contacted him over telephone to appear on his behalf stating inter alia, that he is already out of station relating the death of father-in-law. Today in fact is the date fixed for ex-parte hearing of the case because of the failure on the part of the defendant in appearing in the Court and filing the written statement. It appears on record that all notices issued to the defendant had been returned unexecuted with the report by the postal department that the addressee is not available. Thereafter the notices was even published in the local newspaper, yet he did not turn up. It appears on record that all notices issued to the defendant had been returned unexecuted with the report by the postal department that the addressee is not available. Thereafter the notices was even published in the local newspaper, yet he did not turn up. This is the first time the defendant has ever sent a counsel on his behalf. But application filed by the learned counsel Mr. Batt is not supported by any vakalatnama duly authorized by the defendant. There is either no supporting document in the application of Mr. Batt for defendant seeking some more time for filing the written statement. However, any more granting time to the defendant will prejudice the plaintiff, and hence, this application of Mr. Batt filed on behalf of the defendant without the Vakalatnama and without any supporting document about the inability if defendant to attend the Court is found fit to be rejected, and, this application seeking for granting some time for filing written statement is rejected and the learned counsel for plaintiff is allowed to proceed for further necessary orders." 7. On careful perusal of the above orders reflects that the learned Court below obsessively believed that the defendant was intentionally avoiding to appear before the Court. That is why, a bare statement made by the learned counsel swayed the learned Court to presume that the defendant/appellant was running a permanent business at Naharlagun and accordingly, ordered service of notice by way of newspaper publication. On the date fixed for ex-parte hearing, Mr. M. Batt, learned counsel entered appearance on behalf of the defendant/appellant, on being instructed over phone, and prayed for time to file written statement. Further the learned lower Court was also apprised of the inability of the defendant/appellant to appear personally in the Court for the purpose of filing written statement, as he had to go to his hometown in Kerala due to sudden demise of his father-in-law. Such application filed by Mr. M. Batt, learned counsel was rejected by the learned Court below for not filing the application in the Court supported by any Vakalatnama signed by the defendant/appellant and for not annexing document relating to the death of father-in-law of the defendant/appellant. Such application filed by Mr. M. Batt, learned counsel was rejected by the learned Court below for not filing the application in the Court supported by any Vakalatnama signed by the defendant/appellant and for not annexing document relating to the death of father-in-law of the defendant/appellant. Apparently the learned Court below failed to reason rationally, and therefore, expected a Vakalatnama to be filed and death certificate of the father-in-law of the defendant/appellant to be produced in the Court by the defendant/appellant, who was located at Kerala at the relevant time. Learned Court below proceeded to hear the matter ex-parte and decreed the suit ex-parte for recovery of a sum of rupees as mentioned aforesaid. 8. Thereafter on 26.03.2009, the defendant/appellant filed a petition under Order 9, Rule 13 of the C.P.C. praying for setting aside the ex-parte decree dated 25.02.2009 passed against him in the suit. The defendant/appellant, in his petition, under Order 9, Rule 13 of C.P.C., pleaded that notice was not properly served upon him before resorting to ex-parte hearing of the suit. It is submitted on behalf of the defendant/appellant that on 20.11.2008, in absence of the plaintiff/respondent in the Court, the learned counsel for the plaintiff/respondent imputing intentional absence in the Court from the beginning by the defendant/appellant, sought for permission for publishing the notice in the local newspaper. Accordingly on the bare submission of the learned counsel permission without recording satisfaction on the basis of foundational facts required, the procedure prescribed under Order 5, Rule 20 of the C.P.C., for substituted service of notice, upon the defendant/appellant by publication of notice in the local newspaper was resorted to. 9. Upon perusal of the order dated 18.12.2008, it appears that upon hearing the submission of the learned counsel for the plaintiff/respondent, learned Court below observed that the defendant/appellant had throughout remained absent despite repeated notices and thus ordered to proceed to hear the suit ex-parte. But very strangely enough, learned Court below fixed next date on 22.01.2009, for taking steps for causing service of notice upon the defendant/appellant. 10. But very strangely enough, learned Court below fixed next date on 22.01.2009, for taking steps for causing service of notice upon the defendant/appellant. 10. The defendant/appellant further contended in his petition under Order 9, Rule 13 that he was not served with a notice from the Court before proceeding ex-parte and further contended that on going through the records, he came to know that notice ordered to be served on him by registered post with A/D post by the learned Court below was returned un-served to the Court. The defendant/appellant further submitted that due to sudden demise of his father-in-law on 05.01.2009, he, along with his family members, had to rush to Kerala on 06.01.2009 and while he was at his hometown, he was informed by one of his relatives over telephone regarding the publication of notice and fixing of the date of appearance on 21.01.2009 by the Court; thus the defendant/appellant immediately contacted his counsel, Mr. M. Batt over telephone and requested him to appear before the learned Court below on his behalf and pray for some more time to file written statement. However, the learned Court below vide order dated 22.01.2009 rejected the aforesaid prayer and proceeded to pass the ex-parte decree. 11. After the rejection of the petition under Order 9, Rule 13 C.P.C., the defendant/ appellant filed this appeal. 12. The learned counsel for the defendant/appellant further submitted that there was no proper service of notice upon the defendant/appellant in terms of the procedure laid under the Code of Civil Procedure and publication of notice in the newspaper was resorted to without exhausting other modes of service of notice upon the defendant/appellant in terms of the provision of C.P.C. 13. Drawing the attention of the Court to the order passed by the learned Court below, the learned counsel for the defendant/appellant submitted that the learned Court below took an adverse view without any report from the office to hold that defendant/appellant was intentionally avoiding appearance in the Court. 14. Mr. H. Tangu, the learned counsel for the plaintiff/respondent raised a preliminary question by contending that the appeal preferred by the defendant/appellant is barred by limitation. 14. Mr. H. Tangu, the learned counsel for the plaintiff/respondent raised a preliminary question by contending that the appeal preferred by the defendant/appellant is barred by limitation. Learned counsel for the plaintiff/respondent in order to justify the above contention pointed out that the suit was decreed ex-parte on 25.02.2009 and, thereafter, an application was filed by the defendant/appellant on 26.03.2009 for setting aside the ex-parte decree dated 25.02.2009, which was rejected by the learned Court below on 20.08.2009. Learned counsel for the plaintiff/respondent further submitted that this appeal against the ex-parte decree dated 25.02.2009 has been filed on 14.12.2009, beyond the period of limitation prescribed under the Limitation Act, 1963. In reply to the above contention, learned counsel for the appellant pointed out that the appellant has impugned the order dated 20.08.2009 by which the prayer of the appellant for setting aside the ex-parte decree was refused. 15. The learned counsel for the plaintiff/respondent, drawing the attention of the Court to a decision reported in Smt. Bama Sundari Biswas vs. Jamini Kumar Das, AIR 1971 Tripura 60 submitted that when two concurrent remedies are available against a particular order they cannot be availed of one after the other even at a point of time when the period of limitation for either of the remedies has run out. The learned counsel for the plaintiff/respondent further submitted that the appeal has been filed by the defendant/appellant without an application in writing under Section 5 of the Limitation Act and, therefore, the appeal deserves to be rejected on this ground alone. The relevant observation in the decision of this Court in Bama Sundari Biswas (supra) reads as follows: "The mere fact that a revision petition was filed in this Court against the order allowing the amendment would not extend the time for filing an appeal against the amended decree. When two concurrent remedies are available against a particular order they cannot be availed of one after the other even at a point of time when the period of limitation for either of the remedies has run out. When two concurrent remedies are available against a particular order they cannot be availed of one after the other even at a point of time when the period of limitation for either of the remedies has run out. As an instance, the judgment-debtor has three concurrent remedies against a decree passed ex-parte; he can either apply for its review under Order 47, Rule1, or can move an application for setting it aside under Order 9, Rule 13 or he can agitate its correctness by an appeal filed under Section 96 of the Civil Procedure Code. If he chooses one remedy and fails and then takes recourse to the alternative remedies but after the period for adopting them has run out obviously he will have to face nothing but a dismal failure. Likewise, in the present case it was clearly open to Bama Sundari and others to file an appeal against the amended decree or a revision petition against the order allowing the amendment. They having chosen the latter remedy and failed, their appeal could have been admitted if it were within time in terms of Article 116. As indisputably they have come to this Court in appeal more than ninety days after the passing of the amended decree, that appeal has to be thrown out as barred by time. In other words, the provisions of Section 3, Limitation Act, are clearly attracted and they leave no alternative to the Court but to act that way." 16. The present appeal has been filed by the appellant against the impugned order dated 20.08.2009 rejecting the application under Order 9, Rule 13 of C.P.C. to set aside the ex-parte decree. Apparently, this appeal is not against the ex-parte judgment and decree passed by the Court on 25.02.2009. Therefore, the appeal has been filed under Order 41, Rule 3(d) of the C.P.C. Apparently, there appears to be misquotation of the relevant provision of the code in the memorandum of appeal filed by the appellant. However, such misquotation would not deprive the appellant from the relief available to him as per provision of law. 17. In Madanlall Agarwala vs. Tripura Modern Bank Limited, AIR 1954 Assam 1, Full Bench of this Court held that from an application under Order 9, Rule 13 either dismissed for default or decided on merits, an appeal will be competent under Order 43, Rule 1(d) of C.P.C. 18. 17. In Madanlall Agarwala vs. Tripura Modern Bank Limited, AIR 1954 Assam 1, Full Bench of this Court held that from an application under Order 9, Rule 13 either dismissed for default or decided on merits, an appeal will be competent under Order 43, Rule 1(d) of C.P.C. 18. It has been stated on behalf of the defendant/appellant that after final disposal of the petition on 20.08.09 by the learned Court below, the learned counsel for the appellant immediately applied for the certified copy of the rejection order on the same day (i.e. on 20.08.2009). Since, the certified copy was not supplied by office, the appellant filed a complaint petition addressing the learned Court below (Annexure-P/15) stating therein the aforesaid fact of non-supply of the certified copy. Learned Court below endorsed the application (Annexure-P/15) and directed the office to supply the certified copy. After the above direction issued by the learned Court below, the office on 15.09.09, accordingly, supplied to the appellant, the certified copy of the impugned order. There is no reason to disbelieve the forthright statement of fact aforesaid made by the appellant on oath supported by document regarding belated supply of the copy of the impugned judgment by the learned Court below. Apparently, when the aforesaid period admittedly taken by the learned Court below, for supply of the certified copy of the impugned judgment dated 20.08.2009, to the appellant is excluded, this appeal is well within time. In such a situation filing of an application under Section 5 of the Limitation Act, 1963, is a redundant exercise. 19. Learned counsel for the respondent/plaintiff further contended that where the appellant had chosen to file application under Order 9, Rule 13 for setting aside the ex-parte decree the time spent in prosecuting the application cannot be deducted under Section 5 of the Limitation Act from the time allowed for filing appeal against the decree. The learned counsel for the respondent/plaintiff relied on the decision reported in Jokam Reddy & Others vs. Kokar Malliah, AIR 1976 Andhra Pradesh 399, wherein it was held that 'where the petitioners had chosen to file application under Order 9, Rule 13 for setting aside the ex-parte decree the time spent in prosecuting the application cannot be deducted under Section 5 of the Limitation Act from the time allowed for filing appeal. The petitioners are not permitted under law to say that the delay was caused on account of their pursuing legal remedies available to them under law and that there was no negligence on their part, as recourse to proceedings taken by them under Order 9, Rule 13 for setting aside the ex-parte decree does not constitute sufficient cause as contemplated by Section 5 of the Limitation Act.' 20. The fact situation of the present case and that of (i) Bama Sundari Biswas (supra) and (ii) Jokam Reddy & Others vs. Kokar Malliah (supra) are not similar. 21. Further, since the provision of Order 43, Rule 1 (d) of the Code of Civil Procedure confers a right of appeal against an order rejecting an application to set aside a decree passed ex-parte, and such right of appeal shall not extinguish as contended by the learned counsel for the respondent. Therefore, the ratio of the decisions of the aforementioned cases being in different context, would not apply in the present case. The impugned order passed by the Court under Order 9, Rule 13 being an appealable order, there is no scope to interpret that the appeal against the aforesaid order is not maintainable, being barred by limitation. 22. Upon careful analysis of the facts and circumstances of the case and upon hearing the rival contentions of the learned counsel for the parties, it appears that although the learned Court below ordered for ex-parte hearing on 18.12.08, after publication of the notice in the local newspaper, but in the last sentence of its order reflected insufficiency of adequate service of notice upon the defendant/appellant in the following words:- "Be that as it made the learned counsel for the plaintiff being asked to take steps to causing service of notice to the defendant." 23. The above sentence quite clearly depicts a question mark and confusion in the mind of the learned Court below regarding insufficiency of service of notice upon the defendant/appellant. 24. The defendant/appellant contacted his counsel over telephone, even while he was far away at Kerala, due to sudden demise of his father-in-law; engaged the counsel and requested to represent him and pray for some time, which, however was declined by the learned Court below. The appellant in his application for setting aside ex-parte decree showed sufficient cause for not attending the Court when the case was called on for hearing. 25. The appellant in his application for setting aside ex-parte decree showed sufficient cause for not attending the Court when the case was called on for hearing. 25. From the facts and circumstances discussed above, it appears that the postal notices were not duly served on him and when the defendant/appellant, got telephonic information about publication of notice in the newspaper, fixing a date of hearing, he was far away in Kerala, therefore, it was not possible on the part of the appellant to appear in the Court on the date fixed by the Court. On the top of it, earnest effort of the defendant/appellant through his counsel to obtain a date to enable him to appear in the Court was also rejected by the Court. Ex-facie, due to circumstances beyond his control, the defendant/appellant could not appear in the Court. It would not be out of place to indicate herein that though the attitude of the Court for an expeditious hearing is appreciable, but such expedition should not be at the cost of justice. 26. From the above analysis of the entire gamut of facts, it is apparent that the defendant/ appellant satisfactorily explained that there was sufficient cause for his failure to appear in the Court when the suit was called on for hearing. 27. In view of the facts and circumstances discussed above, the impugned order rejecting the prayer of the defendant/appellant under Order 9, Rule 13 to set aside the ex-parte decree is required to be interfered with to enable the defendant/appellant to contest the suit in accordance with law. Accordingly I do so. As a corollary thereof, the ex-parte decree dated 25.02.2009, passed by the learned Court below, in Money Suit No. 01/2008, is set aside. In view of the above Money Suit No. 01 of 2008 (FTC-YPA) shall stand remitted to the trial Court, for a fresh decision in-accordance with law. 28. Before parting with this appeal, I would like to make it clear that whatever views and opinions have been expressed with regard to the facts and circumstances discernible from the relevant records are meant for the purpose of considering the appellant's prayer. Any view and opinion made herein above by this Court shall not be taken as final views and opinions of this Court in respect of the merit of the suit. 29. Any view and opinion made herein above by this Court shall not be taken as final views and opinions of this Court in respect of the merit of the suit. 29. In order to avoid any further delay in the disposal of the suit, the parties to the suit are hereby directed to appear in the suit in the learned trial Court on 05.07.2010. It is further directed that the learned trial Court shall expedite the disposal of the suit and shall, preferably, dispose of the suit within a period of six months from the date of the appearance of the parties, in accordance with law. Send back the LCRs immediately.