Kerala High Court
Varghese Kunjumon vs Mulamoottil Finance & Kuries on 23 July, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY,THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935
CRP.No. 14 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN CMA 36/2008 of ADDL.D.C., PATHANAMTHITTA
DATED 23-07-2012
AGAINST THE ORDER/JUDGMENT IN IA NOS. 2257/06 & 2258/06 IN OS 551/2005 of
M.C.,PATHANAMTHITTA
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REVISION PETITIONER(S):
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1. VARGHESE KUNJUMON, S/O.VARKEY VARGHESE.
AGED 57 YEARS, SHINU BHAVANAM, CHUNAKKARA VILLAGE,
CHUNAKKARA P.O., ALAPUZHA - 690 534.
2. LEELAMMA VARGHESE,
W/O.VARGHESE KUNJUMON, AGED 48 YEARS,
..DO.. DO..
BY ADVS.SRI.SREEKANTH S.NAIR
SRI.P.BIJIMON
RESPONDENT(S):
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1. MULAMOOTTIL FINANCE & KURIES,
REP. BY ITS MANAGING DIRECTOR JACOB THOMAS,
AGED 65 YEARS, MULAMOOTTIL HOUSE,
KOZHENCHERRY TALUK, KOZHENCHERRY P.O.,
PATHANAMTHITTA - 689 641.
2. MOLLY JACOB, AGED 55 YEARS,
...DO ... DO ....
BY ADV. SRI.V. PHILIP MATHEW
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1-10-2013,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
VPV
P.N.RAVINDRAN, J.
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C.R.P.No.14 of 2013
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Dated this the 1st day of October, 2013
ORDER
The petitioners are the defendants in O.S.No.551 of 2005 on the file of the Court of the Munsiff of Pathanamthitta. The respondents are the plaintiffs therein. The suit instituted by the respondents/plaintiffs is one for realisation of the sum of Rs.61,443/- with interest and costs due under a promissory note executed in connection with a chitty transaction. The defendants were set exparte and exparte evidence was recorded in the suit on 10.7.2006. The suit was thereafter decreed exparte on 20.7.2006. Alleging that summons had not been served on them and they came to know about the suit from a collection agent of the plaintiffs whom the petitioners did not choose to name even in the application, they filed I.A.No.2257 of 2006 under Order IX rule 13 of the Code of Civil Procedure to set aside the exparte decree, accompanied by I.A.No.2258 of 2006 to condone the delay of 87 days in filing the former application. The aforesaid applications were presented on 7.10.2006. The respondents opposed the application by filing written objections. They contended that C.R.P.No.14 of 2013 2 summons was duly served on the defendants and they had knowledge of the decree passed in the suit. They also contended that there is no satisfactory explanation for the delay of 87 days in filing I.A.No.2257 of 2006. In the trial court, the first defendant who is the husband of the second defendant, was examined as DW-
1. In the box he deposed that summons was not served on him and he and his wife came to know about the exparte decree only on 29.9.2006 from a collection agent of the plaintiffs. He did not however name the agent of the plaintiffs from whom he came to know of the decree passed in the suit. The trial court considered the rival contentions and the evidence on record and dismissed the application by order passed on 7.2.2008. Aggrieved thereby, the defendants filed C.M.A.No.36 of 2008 on the file of the Court of the Additional District Judge of Pathanamthitta. By judgment delivered on 23.7.2012, the lower appellate court concurred with the trial court and dismissed the appeal. Hence this civil revision petition.
2. I heard Sri.Sreekanth S. Nair, learned counsel appearing for the petitioners and Sri.V. Philip Mathew, learned counsel appearing for the respondents. The learned counsel appearing for the petitioners contended relying on the decision of the Apex Court in G.P. Srivastava v. R.K. Raizada and Ors. [(2000) 3 SCC 54] that the words "was prevented by any sufficient cause from C.R.P.No.14 of 2013 3 appearing" must be liberally construed to enable the court to do complete justice between the parties and that even assuming that there was some delay on the part of the defendants in moving the court to have the exparte decree set aside, the plaintiffs could have been compensated by award of costs.
3. Per contra, Sri.V.Philip Mathew, learned counsel appearing for the respondents contended relying on the decisions of the Apex Court in Binod Bihari Singh v. Union of India [(1993) 1 SCC 572] and Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project and Another [(2008) 17 SCC 448] that where the case pleaded namely non-service of summons is found to be false, that by itself sufficient to reject the application without any further enquiry as to whether the averments in the application constitute sufficient cause to condone the delay. Relying on the decisions of the Apex Court in Sunil Poddar and Others v. Union Bank of India [(2008) 2 SCC 326], Parimal v. Veena @ Bharti [(2011) 3 SCC 545] and Ramji Pandey & Ors. v. Swaran Kali [(2010) 14 SCC 492] the learned counsel for the respondents contended that even assuming that there was some irregularity in the service of summons, the exparte decree is not liable to be set aside, if the court is satisfied that the defendants had notice of the date of hearing and had sufficient time to appear and answer to the C.R.P.No.14 of 2013 4 plaintiffs' claim. The learned counsel for the respondents contended relying on the observations and findings in the impugned order that the petitioners who had not disputed the fact that the process server deputed from the trial court had on 24.12.2005 had attempted to serve the summons on the second defendant and had affixed the summons at their residence since the second defendant refused to accept it, cannot be heard to contend that they were unaware of the suit. The learned counsel contended that the petitioners have no case that there was any irregularity in the service of summons, that their case is that there was no service of summons, that the fact that service of summons was effected is proved by the materials on record namely the report submitted by the process server and therefore, as the explanation offered by the defendants has been found to be false, the instant civil revision petition is liable to be dismissed on that short ground.
4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The trial court has in the impugned order specifically referred to the fact that the process server deputed from the trial court to serve summons on the defendants had affixed the summons on 24.12.2005 when the second defendant who was present at her residence refused to C.R.P.No.14 of 2013 5 accept the summons. The process server had also given the door number of the residential building wherein the defendants are residing. The relationship between the petitioners is not in dispute. They were formerly and are even now admittedly residing in the same building. The petitioners had not challenged the correctness of the said finding before the appellate court. In this Court also the said finding is not under challenge. That apart, there was also an order of attachment before judgment. The petitioners have no case that they had at no point of time resided in building bearing door No.15/XIV of Chunakkara Grama Panchayat. Though the case set out by the petitioners was that they came to know about the suit only on 29.9.2006 from a collection agent of the plaintiffs, the name of the collection agent was not disclosed either in the application filed in the court below or even when the first defendant was examined as DW-1. Even in the instant civil revision petition, the name of the collection agent is not disclosed. It is thus evident from the admitted facts of the case that the case set out by the petitioners that they were unaware of the suit till 29.9.2006 is a false plea which cannot be relied on. The Apex Court has in Binod Bihari Singh v. Union of India (supra) and Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project and Another (supra), held that once the stand taken by the defendants regarding C.R.P.No.14 of 2013 6 service of summons is found to be false, the application for setting aside the exparte decree is liable to be dismissed without any further enquiry. As the summons had been duly served on the second respondent who is none other than the wife of the first defendant, by affixure after she refused to accept the notice when it was tendered by the process server, it cannot be said that the defendants had no notice of the suit. The process server attempted to serve notice on the defendants on 25.12.2005. The suit was decreed exparte only six months later, on 20.7.2006. It cannot therefore be said that the defendants did not have sufficient time to appear and answer the plaintiffs' claim.
I accordingly hold that there is no merit in the civil revision petition. The civil revision petition fails and is dismissed. No costs.
Sd/-
P.N.RAVINDRAN JUDGE /TRUE COPY/ P.A. TO JUDGE vpv