Madras High Court
P.Baskaran vs Ayyakannu Chettiar on 22 December, 2008
Equivalent citations: AIR 2009 MADRAS 114, 2009 (4) ALL LJ NOC 765, 2009 A I H C (NOC) 658 (MAD), (2009) 1 MAD LW 968
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :22/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(NPD)(MD).No.1986 of 2008 and M.P.(MD).No.1 of 2008 P.Baskaran .... Petitioner Vs. 1.Ayyakannu Chettiar 2.Muthukrishnan 3.Mookammal @ Chinnammal 4.Pitchiyammal 5.Chinnammal 6.Nagalakshmi 7.Karuppiah Pillai 8.Pakkirisamy Pillai 9.Ganapathy 10.Nagaraj 11.B.Rajendran 12.Radha 13.Manjula 14.Mahalakshmi 15.Ramu 16.Anandan 17.Dhanam 18.Venkatalakshmi 19.G.H.Haneef 20.G.H.Saleem 21.G.H.Raneed 22.Harun Kasim 23.Ali Mohammad Kasim .... Respondents Civil Revision Petition filed under Section 115 of C.P.C to set aside the orders passed in E.A.No.153 of 2008 in E.P.No.153 of 1982 dated 28.08.2008 by the Additional District Munsif Court, Madurai at Madurai to set aside the ex parte order passed on 05.04.2002. !For Petitioner ... Mr.S.Ramesh alias Ramaih ^For Respondents ... Mr.S.Manohar (decree holders) :ORDER
The petitioner is the eighth respondent in E.P.No.153 of 1982 in O.S.No.379 of 1954 on the file of the First Additional District Munsif, Madurai Town. On 05.04.2002, he was set ex parte by the executing Court and he filed an application within 30 days from the date of his knowledge on 28.02.2008. On the said date, the 4th respondent, one among the decree holders came to his house and informed him that she obtained an ex parte order against him and she was proceeding with the execution proceedings to take delivery of the property and thereafter alone, he came to know that an ex parte order was passed 05.04.2002. Since the petition has been filed within one month from the date of his knowledge, the petition may be allowed.
2. In the counter filed by the respondents 21 to 25 in E.A.No.153 of 2008 it is alleged that already these respondents have obtained delivery order in the execution proceedings and in order to protract the matter, this petition has been filed with false allegations and that it is incorrect to state that the 4th respondent informed him about the ex parte order passed on 28.02.2008.
3.(i) The averments found in the counter of the 12th respondent in E.A.No.153 of 2008 go to the effect that originally, O.S.No.379 of 1954 was filed for redemption of mortgage. This petitioner and other were in possession of the property in the capacity of mortgagees. Preliminary decree was passed in the suit on 22.03.1956. An Appeal in A.S.No.53 of 1956 was filed which suffered dismissal and a Second Appeal in S.A.No.784 of 1957 was filed and the same was also dismissed by the High Court confirming the preliminary decree.
3.(ii) This respondent filed A.S.No.59 of 1966 which was allowed with modifications. Then, the decree holders filed Second Appeal which was dismissed by this Court. No final decree has been passed afterwards. This respondent filed two applications to receive the mortgage amount and another application. In all the three applications, preliminary decree was passed by the Taluk Munsif Court. The parties who have obtained preliminary decree in the original suit, have no right in the property and the application filed by them for passing final decree has been dismissed. The 19th respondent has filed the counter expressing his consent to allow the application.
4. The learned Additional District Munsif, Madurai Town has dismissed the application by stating that it could not be believed that the petitioner obtained the information as to the passing of the ex parte order only on 28.02.2008, since the siblings of this petitioner already made appearance through their lawyer and the 13th respondent who is the sister of this petitioner received summons in the address which is mentioned in the petition, who filed E.A.No.251 of 2007 in which she has mentioned her address and it is also accepted that both 13th respondent and this petitioner are residing in the same address, that while the 13th respondent appeared in the execution proceedings, the petitioner could not say that he was unaware of the proceedings and that there is no love lost between this petitioner and his siblings. It is also observed that the petitioner did not examine himself nor anybody else to establish about his ignorance of the Court proceedings and that to elongate the proceedings, the petition has been filed.
5. Before entering into the discussion, it is profitable to bear in mind the order sheet particulars in E.A.No.153 of 2008. While this Court scrutinises them with reference to dates of events, it comes to light that the Court bailiff on 23.01.2002 has returned the Court notice pertaining to the 8th respondent in the Execution Petition viz., this petitioner and other respondents by stating that "no residence". On 08.02.2002, the Court ordered for publication in newspaper for this respondent and some other respondents to be made by 21.02.2002. On 21.02.2002 and 08.03.2002, the time was enlarged for making paper publication for the hearing on 05.04.2002. The paper publication was then produced and this petitioner and others were called absent and set ex parte.
6. The learned counsel for the petitioner Mr.S.Ramesh @ Ramaiah would strenuously contend that the executing Court has not followed the procedures contained in Order 5 Rules 19 and 20 CPC and hence, the ex parte order passed against this petitioner gets vitiated. It is his further contention that when the statute mandates the Court to follow and observe the procedures specifically incorporated in the Civil Procedure Code, any deviation in this regard would invalidate the consequent orders also, passed by the Court.
7. He also states that under Order 5 Rule 17, when the Court bailiff returned the notice to the Court in the cases of refusal of accepting the service or the respondent could not be found, then the Court shall proceed to act under Rule 19 of Order 5 CPC and this provision casts a duty on the Court to declare that summons was duly served by recording its reasons and if the Court feels otherwise, it may order by other modes. He further would say that the Court after exhausting the procedure adumbrated under Rule 19, has to proceed to abide by the procedure laid down in Rule 20 and before passing the order for substituted service, it ought to record reasons for its satisfaction to the effect that there is reason to believe that the defendant is keeping out of the way of avoiding service, hence substituted service has to be ordered. He stresses a point that in case if the Court fails to record the reasons for such satisfaction, the ex parte order passed against the defendant becomes a nullity.
7.A. Conversely, the learned counsel for the respondent Mr.S.Manohar would submit that while the Court acted under Order 19, since the verified affidavit was filed by the Service Officer, there was no necessity for the Court to examine him and even if the declaration as contained in Rule 19 was not expressed explicitly in writing, still the ex parte order is valid, but the Court did not stop with it, it further proceeded under Rule 20 and after satisfaction, it ordered substituted service by paper publication and there is no legal infirmity in any of the stages in the proceedings, that the executing Court as scrupulously followed the procedures laid down in the CPC and hence, the ex parte order is valid in eye of law.
8. In order to have a through glimpse of the subject, it is profitable to extract Rules 19 and 20 of Order 5 CPC, which are as follows:-
"Rule 19, Order:5.Examination of Serving officer:
Where a summons is returned under Rule 17, the Court shall, if the return order under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further enquiry in the manner as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit.
Rule :20.Substituted service:
(i) where 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, the Court shall order the summons to be served 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.
[1A Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]
2.Effect of substituted service: Service substituted by order of the Court shall be as effectual as if had been made on the defendant personally.
3.Where substituted service, time for appearance to be fixed: Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require"
9. When Rule 19 is consciously read, it could be discerned that while the Court bailiff returns the notice verified by the affidavit, it is the discretion of the Court to examine him and if such verified affidavit is not produced, it is incumbent upon the Court to examine him. In case, if the Court bailiff was examined, the Court must declare that the summons has been duly served and in case, no such declaration is made, the Court has to proceed to order service by other modes as it deems fit.
10. (i).In this context, judicial pronouncements have uniformly declared that the Court shall record its reasons for such a declaration. If the summons was duly served and the Court records such declaration after applying its mind, the service of summons ends with it and it is then open to the Court to set the defendant ex parte. In case, if such declaration could not be made by the Court for the reasons that in case of non-verification of affidavit by the Court bailiff or his examination, after he had filed the verified affidavit, does not establish that summons were not duly served upon the defendant, the Court is not expected to record its reasons, since no scope for it to express such declaration and in this situation alone, the Court could pass on to the next stage, namely, "Or order such service as it deems fit".
10.(ii). If there were no circumstances for recording declaration as provided in Rule 19, then the Court shall proceed to invoke Order 20, where the Court is expected to get satisfaction to the fact that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding the service or if the service could not be made in the ordinary way, then the substituted service as suggested in various modes in this Rule shall be ordered. The term "satisfied" has been carefully employed by the legislature in Rule 20, which has got its wider connotation and its legal implication assumes much importance.
11. There are two different views expressed by various High Courts and this Court is following the principle laid down by the Supreme Court. One view is that while the Court obtains the subjective satisfaction while applying the provision in Rule 20 that it has to record its reasons indicating its satisfaction and in its absence, the further orders passed by the Court become vitiated. The other divergent opinion in this regard is that it is not a statutory requirement anticipated by law that the Court shall record its reasons as to the satisfaction.
12. The learned counsel for the petitioner cites the Full Bench decision of this Court reported in AIR 1970 MADRAS 271 (V 57 Court 77), Parasurama Odayar Vs. Appadurai Chetty and others, in which this Court has laid down the principles that what is important is that the endorsement of the Court itself should indicate that the Presiding Officer has applied his mind and considers that the summons has been duly served while proceeding under Rule 19.
13. As far as the facts in the present case are concerned, the executing Court did not get satisfaction on the return of summons by the Court bailiff. A perusal of the verified affidavit by the Court bailiff shows that while he went to the residence of this petitioner, he was informed that he had gone out and his date of return was not known and hence, he affixed the notice on the outer door of his residence. Further, the cover containing the summons sent by the registered post from the Court to this petitioner was returned to the Court by endorsement as "not claimed". Anterior to making such endorsement, an other reference is found as "intimation". Hence, while the postman went to the house of the petitioner, he was not available and he left intimation to the inmates of the house and registered cover was retained in the post office for a period prescribed and since it was not claimed by the addressee, it was returned to the Court.
14. In this juncture, the learned counsel for the decree holders would say that a presumption has to be drawn under Section 27 of the Post Office Act and Section 114 of the Evidence Act that the summons was duly served on the petitioner. For this proposition, he relied upon a decision of the Supreme Court reported in P.T. Thomas v. Thomas Job,(2005) 4 CTC 30. The relevant portion of the said judgment goes thus:-
"15. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act, 1898. The requirement of the section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act, 1872 operates apart from that under the Post Office Act, 1898."
15. Even though the presumption as to the service is drawn in favour of this respondents, the fact remains that the Court did not presume that summons was served upon this petitioner and did not make its declaration as ordained by Rule 19, but passed on to act under Rule 20. Hence, it is to be held that there was no recording by the Court as "service sufficient" under Rule 19, since the Court has proceeded to pass orders under Rule 20.
16. When the Court solicits the procedures under Rule 20, the sine qua non is getting satisfaction as to the fact that there is reason to believe that the defendant is keeping out of the way for avoiding service and that the ordinary way summons could not be served.
17. It is quintessence of the learned counsel for the petitioner that before passing the order for substituted service, the Court should record its reasons in writing as to the said satisfaction. He placed reliance upon a decision of this Court reported in CD Law Journal, CDJ 2006 MHC 1025, in which the learned Judge, while making observations under Order 5 Rule 20 CPC has remarked that under this provision, the Court should be satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or for any other reasons that the summons cannot be served in an ordinary way and the absence of recording satisfaction, would amount to violation of principles of natural justice. The said case was decided on the order of assessment levying tax by the Income Tax Officer.
18. He also cites a Division Bench decision of the Allahabad High Court reported in AIR 2004 Allahabad 391, Om Prakash V. Prakash Chand and others, in which the learned Judges have held that Order 5 Rule 20 CPC makes it clear that substituted service is permissible, provided, the Court records reasons after being fully satisfied that service cannot be effected in an ordinary manner and it cannot be taken as a matter of right. In the said decision, another ruling of Division Bench of the Calcutta High Court has also been referred to in AIR 1984 Cal 82, Teharoochand V. M/s.Surajmull Nagarmull, in which it is held that before issuing summons under Order 5 Rule 20 of the Code, the Court is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way.
19. In AIR 1999 Madhya Pradesh 21, M/s.Satish Construction Company V. Allahabad Bank, the learned singe Judge has rendered his observation in a similar way that while passing Order 5 Rule 20 the Court has to record its satisfaction that the defendant was keeping out of the way for the purpose of avoiding service or in the alternative, it is required to record its satisfaction that for any other reasons, the summons could not be served in ordinary way and that absence of such recording would render the ex parte order improper.
20. The decision reported in 2007 (5) CTC 847, Doss and another Vs. Vamanan and another, cited by the learned counsel for the petitioner pertains to the service of summons as to the procedures enumerated in Order 5 Rule 19. In AIR 1989 Punjab and Haryana 319, Kuldip Rai V. Sharan Singh (deceased by LRs) and others, an identical view has been echoed that before resorting to the provisions of Order 5 Rule 20 of the Code of Civil Procedure, it is obligatory for the Court to record its satisfaction as enjoined under the statute and the substituted service cannot be ordered in a routine manner.
21. Even though two views expressed by the Allahabad, Madhya Pradesh, Calcutta and Punjab and Haryana High Courts, and a learned Judge of this Court, are to the effect that before proceeding to pass orders for substituted service under Rule 20(1) and (1-A), the Court has to satisfy and the said satisfaction should be revealed in writing by the Court by recording the same, the view taken by the Supreme Court and a Division Bench of Patna High Court in this regard is on the reverse. While the Supreme Court deals with Order 5 Rule 20, it is held that if the satisfaction of the Court in this context is implicit, it is sufficient. The relevant portion of the judgment containing this observation is as follows:-
"4. Learned counsel for the appellants contended that the trial court has acted in violation of the procedure prescribed under Order 5 of the Code of Civil Procedure, in issuing summons to the defendants. He further contended that the substituted service can be resorted to only when the court is satisfied that the defendant is avoiding the service or the service cannot be effected in an ordinary way. The trial court having not passed any order about the satisfaction as envisaged under the Code, it was not open to the trial court to order for substituted service. This submission need not detain us any longer. On the facts of the case the court's satisfaction is implicit in the order directing service by publication"`
22. While rejecting the contention that the Court having not passed any order about the satisfaction, it was not open to the trial Court to order for substituted service, the Supreme Court has held that the satisfaction was implicit. It is to be noted that the Apex Court has not made any observation that the Court has to express its satisfaction by recording, before ordering substituted service.
23. A Division Bench decision of the Patna High Court is directly on this subject may be profitably referred to which is reported in AIR 1967 Patna 280, Raj Kumar Singh Vs. Gourishankar Jhunjhunwala and others.
"The learned Judge, who disposed of the miscellaneous appeal in this Court, held that there was a justification for step being taken under Order 5 Rule 20 of the Code on the facts and circumstances of the case. But learned counsel contended that it was not the satisfaction of the appellate Court but the satisfaction of the trial Court which was a pre-requisite condition before any substituted service could be legally ordered for under Rule 20. This contention is right, but, all the same, it does not appear from the order sheet nor from any other material that the trial Court in this case was not so satisfied before he passed the order on the 17th July, 1953 for substituted service. It is not necessary and that has also not been prescribed in any provision of the Code of Civil Procedure that the Court will have to record the reasons for such satisfaction or even the fact that it was so satisfied before he can make a valid order under Rule 20 of Order 5 for substituted service"
24. As per the Patna High Court, Rule 20 has not specifically directed the Court to record its reason for the satisfaction and then pass on to the next stage. The Court further proceeded to observe that from the order sheet it will be clear that several attempts had been made by the plaintiff to have the personal service of summons on defendant No.2 as on other defendants and when such attempts did not materialize, the Court passed order for substituted service. There is therefore sufficient materials to presume that the Court was satisfied as a matter of fact as contemplated under Rule 20 before it directed the substituted service effected by the publication of the summons in the Bengal Gazette. It his further held as follows:-
'Mere absence in the order sheet to the effect that the Court was satisfied or mere absence of any reference to the reasons for such satisfaction in the order sheet cannot be taken advantage of by the appellant to challenge a valid order as made under Rule 20. Such record is not called for under any provision of law. In absence of any other material to the contrary. We have to presume that the Court had been satisfied before it passed the order on the 17the July 1953 for substituted service'.
25. The facts prevailing in the case on hand are also on the same footing. Earlier, as adverted to supra, there had been steps taken by the decree holder to serve summons upon this petitioner and thereafter only, the Court passed order for substituted service. So, the materials available as seen in the docket sheet orders would go a long way to show that the Court only after having satisfied itself as per Rule 20, Ordered substituted service.
26. In this connection, this Court intends to gather the intention of the legislature while deriving its central idea, in embodying two provisions in Rules 19 and 20 in Order 5. Under Order 19, the Court is expected to declare that the summons have been duly served after fulfilling the legal formalities as contained in Rule 19, whereas the Court is anticipated to get satisfaction that there is reason to believe that the defendant is keeping out of the way of avoiding the service, in Rule 20.
27. The Full Bench of this Court in Parasurama Odayar (cited supra) has held that the declaration under Order 19 shall be in writing by recording reasons so as to infer the application of mind by the Presiding Officer. Hence, the intention of the legislature was gathered by the Full Bench of this Court and it was held that in order to declare the opinion of the Court, it has to record its reasons as to such declaration. It is laid down in unequivocal terms in the said decision that the declaration must be expressly divulged by the Court in any of the form known to it. But, significantly, such obligation of recording reasons was not the intention of the legislature, while it requires the Court to function under Rule 20. Had the intention of the legislature been to mandate the Court to record reasons to reveal its satisfaction, it might have introduced any other term in the place of the word "satisfied" and it might have been the same words as "after declaration". The use of different words in both the Rules 19 and 20 would explicitly make more reasonable premise to the effect that the satisfaction might be an implicit, as held by the Supreme Court (supra) and not in express terms. In other words, opening sentence of Rule 20 might have been as "after the Court having declared that there is reason to believe that the defendant is keeping out of the ways for the purpose of "avoiding service", instead of having placed the words as "whether the Court is satisfied that", if really the legislature was intending to make it salutary, the recording of reasons for satisfaction, on the Court. It is the pointer to the legislative intent.
28. While the intention of the legislature is gathered in such a way, it has to be inevitably held that no duty is cast upon the Court under Rule 20 to explicitly express its satisfaction by recording the reasons and same ought to be inferred from other circumstances, namely, the earlier hearings where service of summons was either defeated on behalf of the defendant or made impossible by any other means. (emphasis supplied)
29. In such view of this matter, the contention that the Court has to furnish reasons for its satisfaction under Rule 20 has to be discountenanced. Following the principle laid down by the Supreme Court, it is observed that the Court is not bound to record reasons for satisfaction. It is also regarded that Rule 20 has not been drafted in such a way, making it obligatory or mandatory on the part of the Court to perform such function. It is not a statutory duty cast on the Court.
30. The learned counsel for the respondents would garner support from a decision of the Supreme Court reported in 2005(4) CTC 534, Damodaran Pillai and others v South Indian Bank Ltd, in which Their Lordships have held that the starting point of limitation for filing restoration application would be the date of order and not date of knowledge of order. Date of knowledge of order was held to be wholly irrelevant. That observation made by the Supreme Court while dealing with application of the restoration of the petition which was dismissed for non-prosecution in execution proceedings. In that case, the petitioner had been very much aware of the pendency of the petition and hence, the date of knowledge of the dismissal could not be the relevant factor for the purpose of Order 21 Rule 106 (3) CPC. But in the present case on hand, the petitioner is respondent in execution proceedings and he pleads that no summons was served on him and hence, the decree holders cannot take recourse to this decision.
31. In the light of the decisions of the Supreme Court and the various High Courts, it is held that the Court is not expected to record its reasons as to the satisfaction gained for the purpose mentioned in Rule 20 which is not mandatory and so, the order of substituted service passed by the executing Court is valid in the eye of law and it does not suffer from any illegality. The ex parte order passed against the petitioner need not be set aside under any circumstances and the proceedings are held to be in accordance with law. In such view of this matter, the order challenged is confirmed. The civil revision petition suffers dismissal.
32. In fine, the civil revision petition is dismissed. Consequently, connected M.P. is closed. No costs.
ssm To The Additional District Munsif Court, Madurai