Karnataka High Court
Sri Venkatesh vs Sri P. Subbaiah And Anr. on 20 August, 2007
Equivalent citations: ILR2007KAR3912, 2008(1)KARLJ263, AIR 2008 (NOC) 72 (KAR.) = 2007 (6) AIR KAR R 17, 2008 (1) ABR (NOC) 140 (KAR.) = 2007 (6) AIR KAR R 17, 2007 (6) AIR KAR R 17, 2008 A I H C 250, (2007) 4 ICC 561, (2008) 1 KANT LJ 263
Author: A.S. Bopanna
Bench: A.S. Bopanna
JUDGMENT A.S. Bopanna, J.
1. This appeal is by the unsuccessful petitioner in Misc. No. 598/ 2006. The said petition was filed by the appellant under Order IX Rule 13 with Section 151 of Code of Civil Procedure seeking an order to set aside the judgment and decree dated 02.09.2005 passed in O.S. No. 8635/2004. The Court below after considering the rival contentions has dismissed the petition by its order dated 06.03.2007. As such the appellant claiming to be aggrieved has impugned the same in this appeal.
2. I have heard Sri K. Suman, learned Counsel for the appellant and Sri K. Subba Rao, learned Senior Counsel on behalf of Sri C. Shankar Reddy, learned Counsel for the first respondent. Though notice was issued to the second respondent and service was awaited, his presence at this juncture is unnecessary and as such the matter is heard and disposed by this order.
3. It is well settled that in a petition filed under Order IX Rule 13, the issue of setting aside an ex parte judgment and decree could be resorted to either when the Court is satisfied that the summons was not duly served which includes improper procedure adapted resulting in lack of notice or when the petitioner demonstrates that he was prevented by sufficient cause. This aspect of the matter has no doubt been noticed by the Court below and I have also referred to this aspect of the matter at the outset, only to point out that even though the pleadings and evidence before the Court below are voluminous, the order impugned is lengthy and the arguments addressed are weighty, the point of the matter would be to notice the proceedings of the Court below in the suit and come to a conclusion as to whether the service of summons made in the manner should be held as sufficient or whether the appellant should be provided an opportunity.
4. The scope of consideration noted above would indicate that the detailed reference made to the pleadings, the evidence and cross examination so as to indicate the relationship between the parties and as to whether the appellant was a necessary party at all may not require detailed consideration. Nor would the decisions cited by learned senior Counsel in the case of Rupchand Gupta v. Raghuvanshi (Pvt.) Ltd. and South India Industries Private Limited v. Sarup Singh come to the aid of the first respondent herein. If it was a case where the appellant would plead that despite service of summons, he was prevented by sufficient cause, then the party approaching the Court on that ground would not only have to plead but should also prove the reasons assigned so as to constitute sufficient cause. Further in a case of this nature any amount of cross-examination to bring about the relationship between the appellant and the second respondent vis-a vis the appellant and the first respondent in the proceedings under Order IX Rule 13 of Code of Civil Procedure would not arise since the appellant was not seeking setting aside of the judgment on the ground that he was not made a party to the suit, but on the other hand it is his case that despite being made a party to the suit, he has not been effectively served. It is for this reason the decisions cited supra are not material in this proceedings. In any event, with regard to the pleading regarding summons, the same is available in the petition as well as in the appeal to the extent required.
5. Hence the aspect which requires focus is with regard to the procedure adapted for service of summons in the original suit. In this regard Sri K. Suman, learned Counsel for the appellant has extensively referred to the provisions contained in Order IX Rules 2 and 6 and also Order V Rule 20 of Code of Civil Procedure to point out the procedural safeguard provided and has thereafter taken me through the order sheet of the Court below in the original suit in extenso to contend not only the Court below has seriously erred in permitting publishing of notice by paper publication but has failed to dismiss the suit when the plaintiff did not comply regarding payment of process fee as required. The learned Counsel would refer to a decision of this Court in the case of R. Muniswaminaidu v. L. Thir Unavakkarasu 1966 (2) Mys. L.J. 708 regarding satisfaction of the Court before permitting paper publication. Further, reference is made to the decision of the Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal v. Gurupreetsingh AIR 2002 SC 2370 and Nahar Enterprises v. Hyderabad Allwyn Limited and Anr. to contend that even mere knowledge of the suit without knowledge of date of hearing and even receipt of summons without a copy of plaint is held as insufficient by the Hon'ble Supreme Court. The decision in the case of G.P. Srivatsa v. R.K. Raizada is also cited to contend regarding liberal construction of sufficient cause to do complete justice.
6. On the other hand Sri K. Subba Rao, learned senior Counsel referring to the prolonged effort by the landlord to secure possession and with reference to sequence of events would contend that the appellant has deliberately evaded service. The tenant of the premises i.e., the second respondent also did not appear and was placed ex-parte. The said person had filed a petition under Order IX Rule 13 Code of Civil Procedure earlier and in the said proceedings, the said tenant had agreed to vacate and the appellant is very much aware of the development. Despite the same, he filed a suit in O.S. No. 5830/2006 for injunction on 03.07.2006 and thereafter has filed the present petition on 12.08.2006. The learned senior Counsel would also contend that the appellant cannot take benefit of Order IX Rule 2 and 6 Code of Civil Procedure as contended since process had been paid and the summons was sent through Court as well as RPAD. The summons sent by RPAD was returned since it was not claimed. As such, as a last resort the notice was published through paper and the Court was justified in permitting the same. The Division Bench ruling of Delhi High Court in the case of Emess Advertising Service v. Hindustan Times Limited AIR 1988 Delhi 14 and the ruling of the Hon'ble Supreme Court in the case of Raivimal Krishna v. State of Bihar is relied on in an attempt to justify the mode of paper publication being the accepted mode.
7. In this backdrop, it would be appropriate to look into the court records in O.S. No. 8635/04 since I have the benefit of the lower Court records which has been called for in this appeal. A perusal of the order sheet would no doubt indicate that at the first instance there is a note on 20.12.2004 that summons was not issued by RPAD for want of RP covers and was issued only through Court. However, only on this aspect or the subsequent notings, I do not find it necessary to accept the contention of the learned Counsel for the appellant that the suit should have been dismissed in view of the provision contained in Order IX Rules 2 and 6 Code of Civil Procedure. But the further perusal of the order sheet would indicate that there is substance in the contention with regard to the grievance regarding improper procedure adapted by the Court before placing the appellant herein ex-parte which has resulted in injustice. The suit was listed before the Court on 29.3.2005 with the ministerial note "summons not received". The Court, noting the same had adjourned the case to 15.4.2005 to await return of summons. Just below the said noting, on the very same day i.e., on 29.3.2005 it is noticed that the Court has received the application filed under Order V Rule 20(1) Code of Civil Procedure and allowed the same holding that defendants 1 and 2 are evading service and adjourned the case to 15.4.2005. What is most relevant is that as indicated above, on the same day the ministerial note had said that the summons had not returned and that noting had not changed in any manner for the Court to immediately thereafter come to the conclusion that the defendants are evading service by accepting the application for substituted service filed by the plaintiff. Thereafter on 13.4.2005 the ministerial note indicates that RP Cover received are put up. But, when the case was listed on 15.4.2005 the same has not been referred to in the order of the Court though it is indicated in the ministerial note. This indicates that the defendants were not placed ex-parte since the RPAD was not claimed but publication was ordered by the Court and adjourned to 10.6.2005 and again advanced to 31.5.2005 and thereafter adjourned to 23.6.2005. On the said day, the paper publication was taken note of and the defendants were placed ex-parte.
8. The further perusal of the records would no doubt indicate that the summons has been returned with an endorsement and RPAD covers with the endorsement as not claimed. Even though the learned senior Counsel has contended with regard to the same, unfortunately the Court has not placed them ex parte based on the return of the same, as otherwise this aspect could have been established one way or the other by examining the process server or the postal authorities and if it was established, nothing more was required. However, due to that lapse, the shara of the process server and the postal authority has remained untested with regard to its authenticity nor has the Court satisfied itself about the alleged evasion. But what has been done is the paper publication and though it is admitted that it has large circulation, it has not been extracted in the cross examination that he had knowledge of the publication. Further, it was only an evening edition. The Emess Advertising Service's case (Supra) relied on by the learned Senior Counsel would be of no assistance since in the facts of that case even the newspaper containing the summons had been served under certificate of posting and therefore the Court had come to that conclusion. The case of Rai Vimal Krishna (Supra) is also of no assistance since that was a case relating to the assessment of holdings and in that context publication was held to be effective public notice. In the instant case, there is no doubt that the Code of Civil Procedure vide Order V Rule 20(1A) provides for paper publication but what is noticed is the procedural lapse while doing so, resulting in lack of notice.
9. One other aspect which requires consideration is with regard to the alleged knowledge of the appellant about Misc. No. 733/2005 filed by the second appellant (first defendant in the suit) and the suit in O.S. No. 5830/2006 filed by the appellant wherein he has stated with regard to the subject suit in O.S. No. 8635/2004. This aspect has weighed heavily with the Court below as indicated by the order impugned. In this regard, in so far as the Misc. No. 733/2005 filed by the second respondent herein, during the pendency of the same the second respondent has filed a memo and agreed to vacate from the suit schedule premises. Even though, knowledge of the entire proceedings is attributed to the appellant by contending that he was present in Court, it is not explained as to why he was not made a party to the memo when he was a party to the suit. Though the second defendant also alleges that the appellant had knowledge, it is difficult to accept since the appellant alleges collusion between the respondents herein. Even the suit filed by the appellant in O.S. No. 5830/2006 on 3.7.2006 is filed on the premise and apprehension that he would be dispossessed without due process of law by obtaining a decree behind his back without impleading the appellant herein. However on the defendants appearing and on the appellant gaining knowledge that an ex-parte decree has been passed against him, he has filed the subject miscellaneous petition, and the conduct does not appear to be abnormal. In this regard, the Hon'ble Supreme Court in the case of Sushil Kumar Sabharwal AIR 2002 SC 2370 has held that knowledge alone is not sufficient since the same cannot be equated with knowledge of date of hearing and it has been further held that the provision casts an obligation on the Court and simultaneously the conscience of the Court should be satisfied that summons was duly served. In fact in the case of Nahar Enterprises JT 2007 (4) SC 218 the Hon'ble Supreme Court has held that, when summons is served without a copy of plaint, further summons should be ordered. Keeping these judgments in view, I am of the opinion that in each case, it is the duty of the Court to be satisfied before alternate and substituted mode of service is ordered and sufficiency of the same is accepted in order to proceed ex-parte.
10. In this regard the Courts cannot be oblivious of the fact that in several cases dubious methods are also adapted in order to secure ex-parte order and as such paper publication should be ordered with due care and also after being satisfied about the particular paper in which the paper publication is sought to be taken out. Here I must add a word of caution that the Courts should avoid permitting publication in all and sundry newspapers for the mere asking since such request is made only because it is cheaper to publish in such paper irrespective of its readership. At this juncture, it is appropriate to notice the contents of Order V Rule 20(1A), which reads as hereunder:
(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.
The word daily newspaper appearing in the provision should be understood to mean not only a newspaper which is circulated on all days of the week but it should be a newspaper of repute which is published as a morning edition with general acceptance to the satisfaction of the Court since the readership of certain papers even though published daily is an exception to the normal practice of reading a newspaper. The purpose of publication is that all concerned should see it, but if publication is permitted in certain evening editions and in newspaper which are not seriously taken, the object and purpose would not be served except for complying with an empty formality which only leads to multiplicity of proceedings.
11. Though in the instant case, I do not find that dubious method has been adapted, the newspaper in which it is published is not in consonance to what I have indicated above and further I have noticed that there was a procedural lapse which has resulted in lack of knowledge of date of hearing. In this background a perusal of the order dated 06.03.2007, impugned in this appeal would indicate that the Court below has erred in proceeding at a tangent and missing the real point in issue and as such the same is not sustainable. That apart the Hon'ble Supreme Court in the case of G.P. Srivastava AIR 2000 SC 1221 has stated about the liberal approach to meet the ends of justice and to construe sufficient cause as an elastic expression without hard and fast guideline and provide an opportunity to put forth the case within a reasonable time. While noticing this view expressed by the Hon'ble Supreme Court and acting accordingly, the aspect which also requires to be noticed in the instant case is with regard to the long pendency of the litigation between the parties as brought out by the learned senior Counsel. Though the subject suit is of the year 2004, the first respondent had initiated eviction proceedings against the second respondent herein for the first time in HRC No. 2198/89 and has been successful only when he obtained the present decree. That being so, apart from setting a time frame, since the second defendant has already conceded the validity of the judgment and decree dated 02.09.2005 by agreeing to vacate, the same is to be set aside only against the appellant herein and limit the enquiry only to the extent of the right available to the appellant by way of defence in the suit.
12. In the result, I pass the following:
ORDER
i) The appeal is allowed in part and the order dated 06.03.2007 passed in Misc. No. 598/2006 is set aside. Consequently, the judgment and decree dated 02.09.2005 passed in O.S. No. 8635/2004 is set aside only in so far as the appellant (defendant No.2 in the suit) is concerned.
ii) The III Addl. City Civil and Sessions Judge, Bangalore city is directed to restore O.S. No. 8635/2004 on file and permit the second defendant therein to file written statement and reconsider the case of the plaintiff in relation to the defence taken by the second defendant.
iii) The parties shall appear before the Court below on 03.09.2007 without further notice, as the first date of hearing and the Court below shall regulate the further proceedings thereafter and dispose of the suit as expeditiously as possible but not later than six months from 03.09.2007.
iv) Parties to bear their own costs in this appeal.
v) Registry to remit the LCR forthwith.