Thiru.N.Balasubramaian vs Tmt.K.Kamala on 23 July, 2010

[Cites 6, Cited by 1]

Madras High Court

Thiru.N.Balasubramaian vs Tmt.K.Kamala on 23 July, 2010

2.The respondent herein filed O.S.No.6 of 1999, on the file of the Additional District Sessions Judge/FTC III, Madurai, against Esthar Rani and 5 others, for specific performance of an agreement of sale, dated 25.12.1995 executed by the 1st defendant, Esthar Rani in favour of the plaintiff. It is stated in the plaint that the first defendant, Esthar Rani, as power Agent of defendants 2 and 3 executed a sale agreement in favour of the plaintiff/the respondent herein and the petitioners herein viz., 5th and 6th defendants in that suit were residing in the suit property at the time execution of the sale agreement and they were also aware of the same and after the execution of the sale agreement, the defendants 1 to 4 evaded the execution of the sale deed and the revision petitioners knowing fully that the respondent has got sale agreement in her favour, got the sale deed in respect of the same property executed by the defendants 1 to 4 on 12.11.1997 in their favour and therefore, a suit was filed for the specific performance of sale, dated 25.12.1995. As the defendants did not appear, they were called absent and set ex-parte and ex-parte decree was passed on 26.04.1999. The plaintiff/respondent herein filed E.P.No.324 of 2000 for executing the sale deed as per the decree and as the defendants 1 to 4 did not execute the decree, the sale deed was executed by the court on 18.06.2003. Thereafter, the respondent herein filed E.P.No.260 of 2003 for recovery of possession of the properties and at that time, the petitioners herein filed an application I.A.No.187 of 2004 in O.S.No.6 of 1999 to set aside the ex-parte decree passed against them stating that no summons were severed on them and at the time of institution of suit, they were living in 24, Middle Street, Tallakulam, Madurai and in the plaint, their address was shown as 26, Vayakattu Street, Goripalayam, Madurai and therefore, summons were not served on them and they are not aware of the suit nor the passing of the decree. It is further stated that no summons were served on the petitioners in E.P.No.324 of 2000 and therefore, the ex-parte decree passed against them is to be set aside.

3.The respondent filed a counter stating that the petitioners were residing in the same address, viz., 26, Vayakkatdu Street, Goripalayam, where the suit property is also situate and summons were served on them and they refused to receive the summons and therefore, paper publication was effected and ex-parte decree was passed and the petitioners were aware of the entire proceedings. It is further stated that notice was sent to the petitioners even to the address,24, Middle Street, Tallakulam, Madurai and the petitioners refused to receive the notice and hence, it cannot be contended by the petitioners that they are not aware of the suit and summons were duly served on them and therefore, the application field to set aside the ex-parte decree, without filing an application to condone the delay is not maintainable and the sale deed has also been executed by the Court in her favour and no proper or valid reason has been stated by the petitioners to set aside the ex-parte decree.

4.The petitioners examined the first petitioner as PW1 and marked 9 documents to prove that at the time of filing of the suit, they were residing in Middle street, Talakullam, Madurai and not in Vayakattu Street, Goripalayam, Madurai, as stated in the plaint and summons were not served on them. On the side of the respondents, two returned covers addressed to the petitioners in Vayakattu Street, Goripalayam, Madurai address were marked.

5.The learned Additional Sub Judge(FTC III),Madurai, on the basis of the evidence held that though summons were sent to 26, Vayakkattu Street, Goripalayam, Madurai 2, it was re-directed to the address of the petitioners viz., 24, Middle Street, Thallakulam, Madurai and returned as unclaimed and that is proved by the Ex.R1 & R2 and thereafter, paper publication was made and therefore, summons were duly served on the petitioners and hence, the petition filed under Order 9 Rule 13 to set aside the ex-parte decree, after a period 3- 1/2 years is not maintainable and the petitioners have also not filed an application to set aside the sale, executed in favour of the respondent and dismissed the application. Aggrieved by the same, the petitioners filed CMA.No.39 of 2004, on the file of the Additional District Judge, Fast Track Court III, Madurai. The learned Appellate Court also concurred with the finding of the trial Court holding that summons were addressed to the petitioners at Vayakattu Street, Goripalayam, Madurai address and they were re-directed to the residential address of the petitioners and despite intimation given by the postal authorities, the petitioners did not claim and it was returned. Therefore, the contention of the petitioners that summons were not served cannot be accepted and sale deed was also executed and the petitioners have also admitted that they resided in the suit property on the basis of 'Othi' and though, under Ex.A1 to 9, the petitioners have proved that they are residing in 24, Middle Street,Tallakulam, Madurai, they have not examined any other persons that the summons were not served on them and Ex.R1 and R2 clearly proved that summons were served on them and admittedly, paper publication was made and hence, the petitioners are not entitled to the relief prayed for.

6.The First Appellate Court held that the application was filed after a long delay and when it is proved that the summons were served on the petitioners, the application to set aside the ex-parte decree has to be filed within a period of 30 days from the date of decree and hence, the application to set aside the ex-parte decree, without filing an application to condone the delay also is not maintainable. Aggrieved by the same, this civil revision petition is filed.

7.Mr.V.Ramakrishnan, the learned counsel appearing for the petitioners submitted that both the Courts below erred in holding that summons were served on the petitioners. It is submitted that admittedly, in the plaint, the address of the petitioners was given as 26, Vayakattu Street, Goripalayam, Madurai and Ex.P1 to P9 would prove that during that period, the petitioners were residing at 24, Middle Street, Talakulam, Madurai. Further, the respondent practised fraud on the Court and without serving summons on them, as directed by the lower Court, made false representation to the Court that the summons were served on the petitioners and on that basis, paper publication was effected and they were not aware of the paper publication and by practising fraud, the ex-parte decree was passed against them.

8.The learned counsel appearing for the petitioners further submitted that in the year 1997, they purchased the suit property for a valuable consideration and the respondent is also aware of the same and that was also mentioned in the plaint and the suit was filed for executing the sale deed by all the defendants and the suit was decreed as prayed for. Nevertheless, while filing the E.P.No.324 of 2000 for execution of sale deed, the petitioners were deliberately omitted in the said E.P.No.324 of 2000 and no summons were taken against the petitioners and summons were taken only against the defendants 1 to 4 and as they were set ex-parte and thereafter, sale deed was executed by the Court in favour of the respondent.

9.The learned counsel appearing for the petitioners Mr.V.Ramakrishnan, therefore, submitted that had the summons in E.P.No.324 of 2000 been served on them, they would have appeared in Court immediately and the act of the respondent in not taking summons against the petitioners in E.P.No.234 of 2000 would also prove that the respondent by practising fraud on the Court obtained the sale deed.

10.Mr.V.Ramakrishnan, the learned counsel appearing for the petitioners, further submitted that when the summons were not served as contemplated under provision of CPC, even though publication was made, the petitioners are entitled to file an application to set aside the ex-parte decree within a period of 30 days from the date of knowledge and hence, the petition is maintainable, without filing an application to condone the delay. It is further stated that there is no need to set aside the sale deed executed in favour of the respondent and once decree is set aside, the sale deed will also become invalid as it was executed in pursuance to the decree and therefore, there is no need to file an application to set aside the sale deed.

11.In support of his contention, the learned counsel appearing for the petitioners relied upon the judgment reported in 2009(3)CTC 342, in the case of The Motor & General Finance Limited, rep by its Regional Manager, "Continental Chambers, 1st Floor, No.142, Nungambakkam High Road, Madras-600 034 vs. S.Durailingam also known as S.Duraisingam and another, wherein this Court has held that the defendant is entitled to file application to set aside the ex- parte decree passed against him, within 30 days from the date of knowledge, when he is able to prove the summons or notices were not duly served on him and substituted service will be of no assistance to plaintiff, if defendant files application to set aside ex-parte decree within 30 days from the date of knowledge. He also relied upon the judgment reported in AIR 2002 SC 2370, in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others, to the same effect and also judgment reported in AIR 1963 Mad.198, in the case of Pichai Ammal vs. Vellayya Thevar alias Ochu Devar, wherein this Court has held that refusal on the part of the defendant to accept postal notice issued under O.5 R9(3)(Madras)C.P.C, cannot be deemed to be as effective service as refusal of such notice when personally tendering and therefore, the Court should not rely upon Exs.R1 and R2 to arrive at a conclusion that summons were served on the petitioners to the same effect.

12.The learned counsel appearing for the petitioner submitted the judgment reported in 1998-I-L.W 1, in the case of Padmanabhan.v vs. R.R.Shah & 4 others. Mr.V.Ramakrishnan, the learned counsel appearing for the petitioners further submitted that as per the records of the Court, the Court has endorsed in diary on 01.03.1999 that D5 & 6 no residence and fresh summons issued to D1, D2, D3, D5 & D6 private summons through post by 22.03.1999. In the diary endorsement on 22.03.1999, D4 served, D4 called absent. No representation for D4, Counsel of D4 also absent and D4 set ex-parte, fresh summons to D1,D2,D3,D5 & D6 by private summons and paper publication by 23.04.1999 and no proof was filed by the respondents for having sent private summons as directed by the Court on 22.03.1999 and Ex.R1 and R2 was the summons issued earlier, which was returned to Court on 08.03.1999 and without serving the summons as directed by the Court, the Court has passed an order on 23.04.1999 that summons were served and publication effected, D1, D2, D3, D5 & D6 called absent set ex-parte and therefore, contended summons were not duly served on the petitioners.

13.On the other hand, the learned counsel appearing for the respondent, Mr.S.Alagarsamy, submitted that the petitioners are aware of the suit filed by the respondent and they were residing in the suit property, as 'Othidar' and it is proved by Exs.R1 and R2 that summons were redirected to the address at 24, Middle Street, Tallakulam, Madurai and despite endorsement, they did not receive the summons and hence, it was returned with the endorsement and therefore, summons were duly served on the petitioners. He further submitted that the property was owned by the defendants 1 to 4 and therefore, E.P was filed against them and the respondent is not bound by the sale deed executed in favour of the petitioners as the agreement of sale was earlier in point time and sale deed in favour of the petitioner is subject to the agreement of sale and therefore, on that ground, it cannot be stated that the respondent has deliberately practised fraud on Court in not taking summons in EP 324 of 2000 against the revision petitioner. He further submitted that once summons were served on the petitioners, they have to file the application to set aside the ex-parte decree within 30 days from the date of decree and they cannot take advantage the date of knowledge and therefore, the petition is not maintainable.

14.He further submitted that the respondent has obtained the sale deed and without filing an application to set aside the sale, the present application is not also maintainable. The learned counsel appearing for the respondent further submitted that without filing application to condone the delay, the petition to set aside the ex-parte is also not maintainable.

15.The learned counsel appearing for the Respondent cited the case reported in AIR 2002 SC 2370 in the case of Sushil Kumar Sabharwal vs. Gurpreet Singh and others and in 2002(4)CTC 307, in the case of Basant Singh and another vs. Roman Catholic Mission and contended that when substitute service was effected and service through post is proved, the application ought to have been filed within 30 days from the date of passing of the decree and therefore, the application is not maintainable.

16.I have given my anxious consideration to the submission made by both the counsels.

17.In this case, it is admitted that the respondent has stated in the plaint that the petitioners are residing at 26, Vayakattu Street, Goripalayam, Madurai viz., the suit property and admittedly, summons were taken to that address. It is seen from Exs.R1 and R2, the returned postal covers that summons were taken through post to respondents addresses at 26, Vayakattu Street, Goripalayam, Madurai and it was re-directed to 24, Middle Street, Tallakulam, Madurai, by the postal authorities and after making endorsement, it was returned to sender. Exs.R1 and R2 are the Court summons issued through Registered Post. Therefore, it is seen from the endorsement made in Exs.R1 and R2 that though the summons were taken to Vayakkatu Street, Goripalayam, Madurai address, it was returned by the postal authorities to the correct residential address of the petitioners and after due intimation for 3 days, it was returned on 07.03.1999. Therefore, as contended by the learned counsel appearing for the respondent summons were sent to the address of the petitioners and was returned. Nevertheless, it is contended by the learned counsel appearing for the petitioners, they have not received the summons and they were not aware of the intimation and even assuming that summons were re-directed to their address and intimation was given, the Court did not set them ex-parte on the basis of the endorsement made in Exs.R1 and R2 and the Court directed the respondent herein to take fresh summons, by order, dated 22.03.1999 and without taking fresh summons, the respondent only made paper publication and obtained ex-parte decree on 26.04.1999. Therefore, we will have to see whether proper service was effected on the petitioners as alleged by them.

18.The lower Court records were called for and it is seen from the records, the following entries made in the diary extract:-

"01.03.1999 - D1,D2,D3 affixed. D4 served. D5,D6 no residence. D4 called absent. ABC. PS to D1,D2,D3,D5,D6 private summons through post by 22.03.1999.

22.03.1999- D4 served. Private summons for R1 to R3,5,6. D4 called absent. No representation for D4, counsel of D4 also absent. D4 set exparte. Private summons for D1,D2,D3,D5,D6 effected and called absent. FS to D1,D2,D3,D5,D6 by SS from publication by 23.04.1999.

23.04.1999- Publication for D1,D2,D3,D5,D6 effected. D1,D2,D3,D5,D6 called absent. No representation for D1,D2,D3,D5,D6 counsel for D1,D2,D3,D5,D6 absent. D1,D2,D3,D5,D6 set ex-parte. Ex-parte evidence 26.04.1999. 26.04.1999- PW1 examined Ex.A1 to A4 marked. Claim proved. Suit is decreed as prayed for with cost."

Therefore, it is seen from the endorsement made by the Court that the Court has directed fresh summons to the petitioners and private summons through post returnable by 22.03.1999 and endorsement was made on 22.03.1999 that private summons for D1,D2,D3,D5 & D6 effected and called absent and fresh summons to D1,D2,D3,D5,D6 by substitute service, paper publication returnable by 23.04.1999.

19.It is also stated in the counter filed by the respondent that private notice was also served on the petitioners as directed by the Court, but there is no proof available in the Court record that private summons were served on the petitioner and from the Court records Exs.R1 & R2 are the only unserved summons and those summons were issued prior to 01.03.1999 as it is seen from Exs.R1 and R2 that the summons were taken on 26.02.1999. Therefore, as directed by the Court on 01.03.1999, no private summons or fresh summons through Court was taken and even as per the order dated 23.03.1999, it is not proved that private summons were taken to the petitioners. Therefore, from Exs.R1 and R2, it cannot be concluded that the petitioners were served with summons and they were having knowledge of suit. Admittedly, even after the summons taken under Ex.R1 and R2, on 01.03.1999, the Court has directed fresh summons and private summons through post and no proof is adduced by the respondent or available in Court records that private summons were taken and served on the petitioner or fresh summons were taken on 01.03.1999 as ordered by the Court. Hence, the lower Court erred in coming to the conclusion that by reason of Exs.R1 and R2 the service of private summons were effected on the petitioners and therefore, summons were duly served. As held by the Division Bench of this Court in the reported judgment 1988(1) LW 1 in the case of V.Padmanaban vs. R.R.sha & 4 others and in 2009(3) CTC 342, in the case of The Motor & General Finance Limited, rep. by its RegionalManager, "Contiental Chamber, 1st Floor, No.142, Nungambakkam High Road,Madras 600 034 vs. S.Durailingam also known as S.Duraisingam and another that proof of substitute service may not be a ground to arrive at the conclusion that the summons were served on the petitioners. In the judgment relied upon by the learned counsel appearing for the respondent in 2002(4)CTC 307, in the case of Basant Singh and another vs. Roman Catholic Mission, the Honourable Supreme Court has held that publication in another paper other than the paper ordered by the court is a mere mistake and on that ground, it cannot be claimed that no proper service of summons and service of summons through registered post shall be presumed to be valid service even though acknowledgement has not been received or lost.

20.As stated supra, in this case, Exs.R1 and R2 only relating to service of summons ordered earlier to 01.03.1999 and on 01.03.1999, the Court has directed fresh summons to the petitioners, through the Court as well as private summons through post and the respondent deliberately did not take any summons as directed by the Court and only made paper publication and obtained ex-parte decree. Unfortunately, the lower court also without verifying whether the respondent has taken summons as ordered on 01.03.2009 made endorsement on 22.03.2009 that private summons effected and ordered publication.

21.Further, it is seen from the records that when the process-server served summons, he made an endorsement that D5 & D6, the petitioners herein, are not residing in the address given in the plaint. Therefore, from all these facts, one can come to the conclusion that the plaintiff/respondent herein is fully aware of the fact that the petitioners are not residing in 26, Vayakkattu street, Goripalayam, Madurai and deliberately, he has given the address of the petitioners as they are residing at Vayakkattu Street, Goripalayam, Madurai and even after, the summons were re-directed to Tallakulam address, he has not taken any steps to the Tallakulam address. Therefore, I am of the considered view that summons were not duly served on the petitioners in O.S.No.6 of 1999.

22.This case can be looked from another angle. After the passing of the ex-parte decree, the plaintiff/respondent filed execution Petition No.324/2000 for getting the sale deed executed in her favour. It is admitted that in the plaint, he prayed for the execution of the sale deed by all the defendants and therefore, in all fairness, she ought to have taken steps in E.P.No.324 of 2000 against the petitioners also. It is seen from E.P.No.324 of 2000 that though in column 'B', the name of the petitioners were mentioned as Judgment Debtors, in the Column I, against whom the decree is to be executed, the names of the petitioners were struck off and it is seen from the endorsement made in E.P.No.324 of 2000 that summons were taken only against the defendants 1 to 4 and no summons were taken against the 5th defendants viz., the petitioner herein. Therefore, having obtained decree against the petitioners for executing the sale deed and knowing fully well that the petitioners have purchased the property even before the filing of the suit from the defendants 1 to 4, the petitioners ought to have made the revision petitioners as parties to the said E.P.No.324 of 2000 for getting the sale deed. Nevertheless, for reason best known to the respondents in E.P.No.324 of 2000, the summons were not taken against the petitioners and therefore, this point of fact would also prove that had summons been taken to the petitioners in E.P.No.324 of 2000, they would have been made aware of the passing of the decree and if they have not taken steps thereafter to set aside the ex-parte, they cannot be permitted to file application to set aside the ex-parte decree, but that opportunity was not given to the petitioners and deliberately steps were not taken against the petitioners.

23.Further, under Article 123 of the Limitation Act, to set aside the ex- parte decree, the application has to be filed within 30 days from the date of decree or when summons or notice were not duly served, when the applicant had the knowledge of the decree. In this case, I have held that summons were not served on the petitioners and therefore, application to set aside the ex-parte decree can be filed within 30 days from the date of knowledge and it is stated that the application was filed within 30 days and hence, there is no need to file an application to set aside the ex-parte decree and the present application filed by the petitioners is maintainable.

24.Further, there is no need to set aside the sale deed in favour of the respondent as the sale deed was executed in pursuance to the decree passed and once, the decree is set aside, the sale deed has no legal validity.

25.Considering all these aspects, I hold that the petition filed by the petitioners under Order 9 Rule 13 of CPC is maintainable and the petitioners have proved that summons were not served on them and therefore, ex-parte decree passed against them is liable to be set aside and it is hereby set aside.

26.Admittedly, during the pendency of the proceedings, sale deed was executed by the Court in favour of the respondent and the respondent has incurred the expenses by paying stamp duty and getting the sale deed registered. Therefore, the expenses incurred by the respondent in getting the sale deed executed and registered has to be compensated by the petitioners. It is seen from the sale deed a sum of Rs.15,600/- was paid towards Stamp duty by the respondent and the respondent had also paid Rs.1,300/- towards registration charges and the respondent must have incurred some expenses. Considering all these expenses viz., stamp duty, registration charges and other expenses, I am of the view that the ex-parte decree can be set aside on payment of costs Rs.25,000/- payable to the respondent towards expenses incurred by her in getting the sale deed and other expenses.

27.Hence, the Civil Revision Petition is allowed and the order of the lower courts are set aside, on payment of Rs.25,000/- payable to the respondent within a period of eight weeks from the date of receipt of copy of this order. Consequently, connected Miscellaneous Petitions are closed. No costs.

er To,

1.The Fast Track Judge III, Madurai

2.The I Additional Subordinate Judge, Madurai.

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