Andhra HC (Pre-Telangana)
Sedam Pandurangaiah vs Chavva Guruvaiah on 28 November, 2003
Equivalent citations: 2004(4)ALD64, 2004(5)ALT365, 2004 A I H C 2179, (2004) 4 ANDHLD 64 (2004) 5 ANDH LT 365, (2004) 5 ANDH LT 365
ORDER P.S. Narayana, J.
1. Heard Sri C. Panduranga Rao, the learned Counsel representing the petitioner in the application, who is the respondent in S.A. No. 685 of 1994 and Sri Gangarami Reddy, the learned Counsel representing the respondent in the application, who is the appellant in S.A. No. 685 of 1994.
2. This application is filed by the petitioner to set aside the judgment and decree dated 18-4-2003 in S.A. No. 685 of 1994 and allow the petitioner to submit his arguments in the second appeal and pass such other suitable orders.
3. It is stated in the affidavit filed in support of the application that on account of business necessity, the petitioner had shifted to Srisailam along with his family. It is pertinent to note that the word "Srisailam" had been inserted in the affidavit with pen. It is also stated that the address given in the appeal could not be changed since he had shifted suddenly. It is further stated that he had no knowledge at all about the pendency of the second appeal and hence, he did not make any appearance before this Court and in such circumstances without giving him an opportunity of hearing, the second appeal was ultimately allowed and hence, this application is moved to set aside the judgment and decree dated 18-4-2003 in S.A. No. 685 of 1994.
4. Sri C. Panduranga Rao, learned Counsel representing the petitioner submitted that there was no actual service effected on the petitioner and without hearing him in the second appeal, the well considered judgment of the Trial Court was reversed. The learned Counsel also submitted that though he had hot specifically pleaded in the affidavit, the fact remains that no attempt was made to serve the summons on petitioner at the address specified in the appeal, but, the same was sent to the address specified in the suit. The learned Counsel also had drawn the attention of this Court to the language employed in Order 41, Rule 14 of the Code of Civil Procedure (for short 'the Code') and also had placed strong reliance on Mirza Wajahad Baig v. Sharanappa, 2000 (7) Supreme 604, in this regard.
5. Per contra, Sri Gangarami Reddy, learned Counsel representing the respondent/appellant in the second appeal had drawn the attention of this Court to the report of the bailiff and had contended that in view of the affidavit filed by K. Jaya Prasad, bailiff of the District Court, Mahabubnagar, it is clear that the present petitioner and his father constitute a Joint Hindu Family and the same was served on the father which is evidenced as per the affidavit filed by the bailiff dated 16-5-1998 and in view of the same, it can be taken that sufficient service was effected and nothing prevented the respondent to appear before the Court and put forth his arguments. The learned Counsel also had drawn the attention of this Court to Order 41 Rule 14, Order 42 Rule 1 and Order 5 Rules 15 and 16 of the Code in this regard. The learned Counsel would contend that the service on the father as evidenced by the bailiff report being sufficient service, the judgment and decree already made need not be disturbed. No doubt, the learned Counsel also had pointed out certain merits and demerits which need not be gone into while deciding the present application.
6. Heard both the Counsel and also perused the material available on record.
7. The bailiff filed an affidavit relating to the service effected and it is stated that on 16-5-1998 as per the address he had gone to the shop of Varalaxmi Pesticides and there it was stated that the present petitioner in the CMP had left to Hyderabad and his father Buchaiah was present. It was also stated that they belong to Joint Hindu Family and hence, the service of notice with an affidavit copy was effected on the father and his signature was obtained. This is the affidavit filed by the bailiff, a responsible Court Officer which cannot be disbelieved. In Mirza Wajahad Baig's case (supra) wherein the Appellant No. 3 was not served at all, the Apex Court had observed that it would be a vital defect and in such circumstances such order is liable to be set aside. Order 5 Rule 15 of the Code dealing with where service may be on an adult member of defendant's family reads as follows:
Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.
Explanation :--A servant is not a member of the family within the meaning of this rule.
8. On a careful reading of Order 41 Rule 14 and Order 42 Rule 1 read along with Order 5, Rule 15 of the Code, I am satisfied that the service effected on the father which is well evidenced by the report of the bailiff is sufficient service and after sufficient lapse of time just with a view to delay the matter further, the petitioner thought of this application which is not a bona fide one. In view of the same, the CMP deserves dismissal.
9. Accordingly the same shall stand dismissed. Costs made easy.