ORDER Sanjay K. Agrawal, J. 1. This is an appeal by the defendants under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (henceforth 'the CPC') challenging the order dated 18/06/2013 passed by 2nd Additional District Judge, Baloda Bazar, District Raipur in M.J.C. No. 7/2012, by which the application filed by the appellants/defendants under Order 9 Rule 13 of the CPC for setting aside the ex parte decree dated 8-11-2010 passed in Civil Suit No. 34-A/2009 and their application for condonation of delay in filing the application for setting aside the ex parte decree have been rejected by the trial Court. The facts in brief, necessary for adjudication of this appeal, are as under:-- (1.1) The respondents No. 1 to 3/plaintiffs herein filed a suit, being Civil Suit No. 34-A/2009 for declaration of title and permanent injunction on 24.08.2009, in which, the trial Court directed issuance of notice by ordinary mode as well as registered post on 26.08.2009 and the case was fixed for 23.09.2009. On 23.09.2009 the trial Court recorded in the order sheet that notice to the appellants/defendants by registered post has not been served as their address is incorrect and the case was fixed on 22.10.2009. On 22.10.2009, the trial Court directed issuance of notice by registered post and fixed the dated on 6.1.2010. Before the date of hearing i.e. on 25.11.2009 respondents No. 1 to 3/plaintiffs filed application under Order 5 Rule 20 of CPC for substituted service through paper publication. The said application was allowed by the trial Court and directed for service of notice to the present appellants/defendants through paper publication. Process fee was paid and ultimately, the notice was served by paper publication but no one appeared on behalf of the appellants/defendants on 18.3.2010, present defendants were declared ex parte and ultimately ex parte decree was passed on 8.11.2010.
Process fee was paid and ultimately, the notice was served by paper publication but no one appeared on behalf of the appellants/defendants on 18.3.2010, present defendants were declared ex parte and ultimately ex parte decree was passed on 8.11.2010. (1.2) Present appellants/defendants filed application under Order 9 Rule 13 of CPC along with an application for condonation of delay under Section 5 of the Limitation Act stating inter alia that they have not received any summons by ordinary means as well as by registered post from the trial Court and they are illiterate person and the circulation of Deshbandhu newspaper is very low in their area and immediately after getting information on 26.06.2012 they obtained certified copy and documents from the all concerned and, thereafter, filed instant application for setting aside ex parte decree alongwith an application for condonation of delay and also filed affidavit in support thereof, which was opposed by respondents No. 1 to 3/plaintiffs holding that there is deliberate delay after coming to know about the impugned decree. 2. Shri Vikram Singh, learned counsel appearing for the appellants/defendants would submit that the trial Court has committed legal error in rejecting both the applications filed under Order 9 Rule 13 of the CPC and under Section 5 of the Limitation Act. 3. Per contra, Shri J.R. Verma, learned counsel appearing for the respondents/plaintiffs No. 1 & 2 would submit that the trial Court is absolutely justified in rejecting the defendants' application as even after the knowledge of the decree the appeal has not been filed within time. 4. I have heard the learned counsel appearing for the parties and considered the rival submissions made therein and also perused the record of the trial Court. 5. It is an admitted fact on record that on 26.08.2009, the trial Court directed that summons be served to the defendants by ordinary means as well as by registered post. Service report so far as ordinary mode is concerned, in the order sheet dated 23.09.2009, the trial Court simply recorded a note that summons sent to the appellants/defendants by registered post has not been served as the address is incorrect and the case was fixed on 22.10.2009 for issuance of the notice by registered post. On that day, the trial Court directed issuance of summons again by ordinary means as well as registered post. 6.
On that day, the trial Court directed issuance of summons again by ordinary means as well as registered post. 6. It appears that the respondents/plaintiffs without complying the order of the trial Court dated 22.10.2009, before date of hearing that is on 6.1.2010, filed application for urgent hearing on 25.11.2009 and also filed application for substituted service. The said application for substituted service was allowed directing summons to be served to the defendants by paper publication, which was complied with after 273 days by plaintiffs and ultimately on 24.1.2010 paper publication was made. 7. It is well settled that service of summons to the defendants has to be served by ordinary means through process server and if after submission of report by process server it appears to the trial Court that defendants are avoiding service of summons issued to them then only procedure under Order V, Rules 12, 15 and 17 CPC has to be followed and substituted service has to be resorted as the last resort when the defendants cannot be served in the ordinary means and the Court is satisfied that there is reason to believe that the defendants are keeping out of the Way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. 8. The Supreme Court in the case of Smt. Yallawwa v. Smt. Shantavva AIR 1997 SC 35 has held as under:-- "the trial Court could not have almost automatically granted the application for substituted services without taking steps for serving the respondent by ordinary procedure as laid down by Order V, Rules 12, 15 and 17 of C.P.C. It must be kept in view that substituted service has to be resorted as the last resort when the defendant cannot be served in the ordinary way and the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way." 9.
In the instant case, plaintiffs did not take any steps for service of summons through ordinary means as laid down in Order 5 Rule, 12, 15 and 17 CPC and without complying the court order dated 22.10.2009 straightway filed application for substituted service on 25.11.2009, which was allowed by the trial Court, which, in the considered opinion of this Court, is not correct practice followed by the trial Court for service of summons to the defendants. The trial Court ought to have kept in mind that defendants are rustic villagers residing in remote village of Tahsil Bilaigarh, District Baloda Bazar and, therefore, service of notice by ordinary mode was necessary. If there was any urgency of hearing, the application under Order 39 Rules 1 & 2 for service of notice by special process server could have been filed. Non service of summons to the present defendants through ordinary procedure as envisaged in the rules and straightway granting application under Order 5 Rule 20 of CPC has resulted into serious miscarriage of justice to the appellants/defendants. 10. It is trite law that the question of 'sufficient cause' has to be construed liberally. 11. In Parimal v. Veena alias Bharti (2011)3 SCC 545 , the Supreme Court had an occasion to define the meaning of word "sufficient cause" as employed in Order 9 Rule 13 of the CPC as under:-- "Order 9 Rule 13 CPC 11. The aforesaid provision reads, as under: "13.
11. In Parimal v. Veena alias Bharti (2011)3 SCC 545 , the Supreme Court had an occasion to define the meaning of word "sufficient cause" as employed in Order 9 Rule 13 of the CPC as under:-- "Order 9 Rule 13 CPC 11. The aforesaid provision reads, as under: "13. Setting aside decree ex parte against defendant.-- In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it 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 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." (emphasis added) 12. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. 13. "Sufficient cause" is ah expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended.
13. "Sufficient cause" is ah expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 , Lonand Grampanchayat v. Ramgiri Gosavi, AIR 1968 SC 222 , Surinder Singh Sibia v. Vijay Kumar (1992) 1 SCC 70 and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn., (2010) 5 SCC 459 ). 14. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause". (See also Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156, Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336 and Mata Din v. A. Narayanan, (1969) 2 SCC 770 ). 15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it.
15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 , Madanlal v. Shyamlal, (2002) 1 SCC 535 , Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156 , Ram Nath Sao v. Govardhan Sao, (2002) 3 SCC 195 , Kaushalya Devi v. Prem Chand, (2005) 10 SCC 127 , Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95 and Reena Sadh v. Anjana-Enterprises, (2008) 12 SCC 589 ." 12. Thus, there is sufficient cause for not appearing before the court in favour of the defendants when the matter is called on for hearing. So far as application under Section 5 of the Limitation Act is concerned, the defendants clearly mentioned the reasons in the application supported by affidavit that after getting information on 26.06.2012 they obtained certified copy and documents from the Patwari and thereafter, filed instant application for setting aside ex parte decree after condoning the delay. 13. The aforesaid reasons assigned by the appellants/defendants being illiterate persons ladies, cannot be said that it is not sufficient cause for condonation of delay in the filing the application. 14. Resultantly, the miscellaneous appeal deserves to be and is hereby allowed. The impugned order dated 18-06-2013 rejecting the application under Order 9 Rule 13 of the CPC and the application for condonation of delay is set aside. The impugned ex parte judgment and decree dated 8-11-2010 passed in Civil Suit No. 34-A/2009 is also hereby set aside and Civil Suit No. 34-A/2009 is restored to its original file of the trial Court for fresh hearing and disposal on merits in accordance with law. 15. Record of the trial Court be sent back forthwith. The parties shall appear before the trial Court on 3rd February, 2014. No order as to costs. Appeal allowed.