IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2010
CORAM:
THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH
C.R.P.NPD.No.3081 of 2010
and
M.P.No. 1 of 2010
State Vanniar Sangam ... Petitioner
Vs.
Arulmigu Kasiviswanathar Temple
represented by its
Assistant Commissioner / Executive Officer,
Arulmigu Vadapalani Andavar Koil,
Vadapalani. ... Respondent
PRAYER: This Civil Revision Petition has been filed to set aside the order passed in I.A.No.2175 of 2004 in O.S.No.142 of 1991 dated 24.11.2008, on the file of District Munsif Court, Alandur.
For Petitioner : Mr.R.Muthukumarasamy Senior counsel
for Mr.K.Balu
For Respondent : Mr.S.Ramasamy, A.A.G
for Mr.N.Varadarajan
O R D E R
This revision petition has been filed by the petitioner against the fair and decretal order passed by the lower Court in dismissing the I.A.No.2175 of 2004 in O.S.No.142 of 1991 dated 24.11.2008.
2. Heard Mr.R.Muthukumarasamy, the learned senior counsel for Mr.K.Balu, learned counsel for the petitioner and Mr.S.Ramasamy, the learned Additional Advocate General for the respondent.
3. The learned senior counsel for the petitioner would submit in his argument that the lower Court has not appreciated the case of the petitioner but it has based its claim on erroneous facts, which is contrary to law. He would further submit in his argument that the lower Court did not consider the settled principles of law, while considering to condone the delay in filing the application to set aside the exparte decree. He would also submit in his argument that the lower Court had wrongly appreciated the facts, where actually no summons were not served upon the 2nd defendant. He would further submit in his argument that the service was held complete by the lower Court, only on the publication effected under Order 5 Rule 20 C.P.C., and that could not be a good service, when the rights of parties are shown to the Court and the exparte decree passed against the 2nd defendant would be greatly prejudicial. He would further submit in his argument that the lower Court had misplaced the reliance on the endorsement made on the summons and the notice returned by the Court bailiff, signed by one Mr.Era Ramadoss, stated to have been the District Secretary of the 2nd respondent, which is not at all a good service, against the 2nd defendant. He would further submit that the oral evidence adduced on the side of the petitioner as well as the respondent was not considered by the lower Court in arriving to a decision. He would further submit that the Court records were not properly perused by the lower Court to come to a correct conclusion whereas, the non application of mind by the lower Court in not perusing the entire records is highly prejudicial. He would further submit in his argument that it is a settled law that no prejudice shall be caused to a person due to the act of the Court and therefore, the non service of summons should have been considered in favour of the petitioner and in the said circumstances, whatever the length of the delay should have been condoned by the lower Court. He would draw the attention of this Court to a judgment of Hon’ble Apex Court reported in 2002 (1) CTC 769 in between Ram Nath Sao @ Ram Nath Sahu and others v. Gobardhan Sao & others to the proposition that where the explanation for delay would constitute “sufficient cause” will depend upon the facts of each case and when sufficient cause is shown and there would be no negligence and inaction or want of bona-fide, cannot be imputed on the part of the petitioner. He would also bring into the notice of this Court, yet another judgment of this Court reported in 2007 (5) CTC 847 in between Doss and another v. Vamanan and another, to the proposition that the non-examination of process server to prove the endorsement in the return of summons or notice will tantamount to a failure to prove the facts relied upon by the respondent. He would further submit in his argument that the non-service of summons would entitle the petitioner, who was the second defendant before the lower Court, to get the ex-parte decree set aside and for that purpose, any length of delay caused in filing such application which was also proved by oral evidence can be accepted and accordingly, the order passed by the lower Court be set aside and the revision be allowed.
4. The learned Additional Advocate General would submit in his argument that the lower Court was correct in its decision, since it relied upon the endorsement of the process server on the returned summons as well as the returned notice served upon one Mr.Era.Ramadoss, District Secretary of Vanniar Sangam, on 18.03.1991 and the lower Court had also come to a correct conclusion that the petitioner / second defendant was made known about the pendency of the suit and the application in the suit by virtue of the service of notice effected by the process server and it is the part of the record and it is for the petitioner to prove that the said person was not an authorised person and therefore the ex-parte decree passed against the petitioner and the delay caused therein are not liable to be set aside or condoned. Moreover, he would further submit in his argument that the knowledge of the original suit filed against the petitioner / second defendant was already known to the second defendant and the allegation that it was made known to the petitioner/second defendant, only on 17.11.2003, when the execution petition was posted and the name of the petitioner was called in the Court, after publication was effected are not reliable versions of the petitioner. Therefore, he would submit that the delay said to have been caused, till such time is not condonable. He would further submit in his argument that the subsequent delay of 32 days was stated to have been explained by the petitioner for the purpose of searching the particulars in Chengalpet Court as well as Poonamalli Court is also not supported by any reliable evidence and therefore, the delay caused therein cannot be condoned. He would therefore, request the Court that the order passed by the lower Court being based upon legal principles this Court may not interfere with and nothing available to set aside the order. Accordingly, he would request the Court to dismiss the revision.
5. In view of the submissions made by the learned Senior Counsel and the learned Additional Advocate General, it has become necessary for this Court to call for original records from the lower Court to appreciate their contentions. Accordingly, the lower Court submitted the records. I have also perused the entire records produced by the lower Court.
6. I have given anxious thoughts to the arguments advanced on either side. The suit was originally filed by the respondent against one person as first defendant and the petitioner/second defendant for ejectment from the suit property. The said suit was filed by the respondent/plaintiff as the owner of the said property. It is averred in the plaint that the plaintiff had leased the property to the first defendant, for five years period and even after the efflux of time, the first defendant was continuing the lease by enjoying the property keeping it in his possession. It is further averred in the plaint that the first defendant had sub-let the property to the second defendant, which is against the terms of the lease agreement and law and therefore, the plaintiff had terminated the lease existed in favour of the first defendant and consequently, the respondent/plaintiff filed the suit for ejectment for vacating both the defendants from the suit property. The present claim of the second defendant was to the effect that he had purchased the suit property from the first defendant and he is claiming to be the owner of the property. The said averment made by the plaintiff and the claim of the second defendant could have been adjudicated only, if the suit is restored to file in the event of the order of lower Court is set aside and the ex-parte decree passed against the petitioner is thereafter set aside. Therefore, this Court need not detailed by go into the merits of both parties in the suit, at this stage. Now, the point for consideration before this Court is whether the lower Court had properly exercised its jurisdiction in disallowing the claim of condonation of the delay of 4373 days, in filing the application to set aside the ex-parte decree by the petitioner.
7. The reasons alleged by the petitioner was to the effect that the petitioner being a Sangam was constituted only for the promotion of the public interest and was not aware of the pendency of the case filed against it by the respondent / plaintiff. The lower Court had based its decision, only on the summons and notice returned by the bailiff for the respective hearing dates namely 17.07.1991 and 22.07.1991.
7. According to the judgment of Hon’ble Apex Court reported in 2002 (1) CTC 769 in between Ram Nath Sao @ Ram Nath Sahu and others v. Gobardhan Sao & others. The dictum laid down regarding the expression of sufficient cause mentioned in section 5 of the Limitation Act would be as follows:-
Para.12:
“Thus it becomes plaint that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent wpon facts of each case. There cannot be a straitjack formular or accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and / or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”
8. In the aforesaid judgment the earlier judgment of Hon’ble Apex Court reported in 1998 (7) SCC 123 in between N.Balakrishnan v. M.Krishnamurthy has been referred and upheld. The relevant portion relied upon in the said judgment would run thus:-
“10……
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court to consider the cause shown for the delay afresh and it is open to such superior Court to condone to come to its own finding even untrammeled by the conclusion of the lower Court.”
9. In the light of the principles laid down by the Hon’ble Apex Court, when the present case is approached, the oral evidence adduced by parties and the records produced by them before the lower Court are vital to decide the point. On a careful perusal of the summons served upon one Mr.Era Ramadoss, stated to be a District Secretary of Vanniar Sangam on 18.03.1991, I could see that since the President has gone away and he (the said person) did not know about the time of his return he had received it. It is stated to have been attested by two persons. The said summons have been meant to the hearing date, as 17.07.1991. Similarly, the notice said to have been served upon the second respondent in the application in I.A.No.350 of 1991 of the said Court bears the similar endorsement and the said application was posted to the hearing on 22.04.1991. The order passed by the lower Court in the said application in I.A.No.350 of 1991 dated 22.04.1991 was to the effect that the second respondent gone out served by his Secretary. However, the Court did not take it as served against the second respondent and therefore it has issued notice against the respondents 1 and 2 once again on 22.07.1991. As regards, the suit is concerned, the suit was not taken up on 17.07.1991 since it was omitted to be taken by the Court, on that day but was taken on 22.07.1991 and the Court passed an order, on 22.07.1991, that the summons were not returned and therefore, to post the case on 23.09.1991 as await summons. On 23.09.1991, fresh summons was ordered for the subsequent hearing on 13.11.1991. Therefore, it could be seen that the return of the summons as received by one Mr.Era Ramadoss, District Secretary of the second defendant was not considered by the lower Court as an effective service both in the suit as well as in the interlocutory application. At this juncture, it has to be seen whether the endorsement over the returned summons and notice could be taken as true coupled with the orders passed by the Court, in ordering fresh notice and summons.
10. The judgment of Hon’ble Apex Court reported in AIR 2002 SCC 2370 in between Sushil Kumar v. Gurupreet Singh. The relevant passage would run thus:-
“8. We find several infirmities and lapses on the part of the process-server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process-server to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidentally, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing…….
……………..
……………..
13.Be that as it may, we are satisfied that the summons was not served on the defendant-appellant. He did not have an opportunity of appearing in the trial Court and contesting the suit on merits. The trial Court and the High Court have committed a serious error of law resulting in failure of justice by refusing to set aside the ex-parte decree.”
11. A judgment of this Court reported in 2007 (5) CTC 847 in between Doss and another v. Vamanan and another would also be helpful. The relevant portion would be as follows:-
Para. 14 and 15:-
“14. Another decision that has been cited by the learned counsel appearing for the petitioners is the Full Bench decision of this Court reported in Parasurama Odayar v. Appadurai Chetti, 1983 LW 137, wherein Their Lordships have held as follows:
Para:11.
“To conclude, the point raised by Kailasam, J. for the answer of the Bench is whether the non-compliance of the requirements of Order 5, Rule 19, C.P.C., would make the service of the summons ineffective. Our answer to this question is this: Where there is no affidavit of the serving officer, and where the serving officer is not subsequently examined by the Court, as found by the learned Judge in this case, there is non-compliance with the first part of Order 5, Rule 19, C.P.C., and the service is ineffective.”
15. The above decisions make it very clear that if the process server makes an endorsement to the effect that the defendants refused to receive the summons, it is incumbent on the part of the Trial Court to direct the process server to file an affidavit and examine him on oath.”
12. In the aforesaid judgment this Court had relied upon a full bench judgment of this Court and had come to a conclusion that when the endorsement made by the process server was in controversy it is incumbent on the part of the trial Court to direct the process server to file an affidavit to that effect and also to examine him to prove the service. As far as this case is concerned, the respondent was relying upon the endorsement of process server in order to show to the Court that the petitioner / second defendant was served. But, however, the lower Court, when the suit was posted on 17.07.1991, it has not noted the return of the summons said to have been served upon one Mr.Era Ramadoss stated to have been the District Secretary on 18.03.1991. The lower Court, while passing an order on 22.04.1991, in the interlocutory application in I.A. No.340 of 1991, has not accepted that the said service of notice against the second respondent as against the the president since he has gone out and had ordered fresh notice. No doubt it is true, in the said notice signed by Mr.Era Ramadoss, District Secretary, it has been stated that the president has gone out and the time of his return was not known to him and therefore, he signed the notice. When the lower Court has not considered that the endorsement made by one Mr. Era Ramadoss, District Secretary was not a complete service and therefore, it had ordered fresh notice and fresh summons in the application and in the suit and thereafter publication, how it could be construed by the lower Court that the suit summons and notice were served upon the 2nd defendant. The suit was filed against the second defendant namely the State Vanniar Sangam through its President and Secretary and it is not represented through District Secretary or any other person.
13. In the back drop of the case, the respondent / plaintiff ought to have examined the process server who has returned the suit summons as well as the notice in I.A.No.340 of 1991 for the hearing dates 17.07.1991 and 22.07.1991 respectively, before the lower Court as one of the witnesses but it was not done so. In the said circumstances, the dictum laid down by this Court, and Hon’ble Apex Court as referred supra is squarely applicable to the present case and the endorsement made on the summons as well as the notice cannot be straight away relied upon and the service of summons cannot be deemed as complete. If really the process server concerned was examined before Court, it could also be elicited regarding the identity of one Mr.Era.Ramadoss and his authenticity to receive summons on behalf of 2nd defendant. The lower Court while considering these circumstances, had failed to go through the earlier orders passed by the said Court in the original suit as well as in the I.A.No.350 of 1991, passed respectively on 22.04.1991 and 22.07.1991, in the said proceedings. When such service of notice as well as summons in those proceedings are not deemed to have been a complete service, then subsequent publication effected cannot also be also a good service. Therefore, the alleged knowledge imputed against the 2nd defendant, in respect of the pendency of the suit filed by the respondent/plaintiff against it as 2nd defendant, cannot be sustained. The evidence of PW1 would go to show that he was known to the pendency of the case only, on 17.11.2003, when he was waiting in the Court hall to see a friend in the said Court, would be more reliable. Therefore, the delay caused from the date of filing of the suit till the date of such knowledge even though a very lengthier one, should have been considered as explained. The subsequent delay of 33 days, in filing the application to set aside the exparte decree was also spoken to by PW1, that it was due to searching of particulars in Chengalpet District Court as well as in Sub-Court, Pooamallee, are not disputed in the cross-examination and therefore, the said explanation is also acceptable.
14. The claim of the petitioner/2nd defendant was to the effect that he had purchased the said property from the 1st defendant. Nature of the claim made by the petitioner / 2nd defendant may not be considered as illusive at this stage, because it could be adjudicated only in the suit if the exparte decree is set aside. The said claim may be true or may not be. At this stage, the court has to consider that his right to defend the suit should not have been defeated, when he was not imputed with knowledge about the pendency of the suit and thereby to suffer an exparte decree. Therefore, he must be given an opportunity to file the application to set aside the exparte decree.
15. In the aforesaid circumstances, the lower Court has grossly erred in considering the claim of the petitioner for condonation of delay. The lower Court ought to have condoned the delay caused in filing the application to set aside the exparte decree, on the explanation of the delay put forth by the petitioner. But it was not done so but it was rejected which can be termed as perverse. Hence, it has become necessary for this Court to interfere with the said finding and orders passed by the lower Court and accordingly, the order passed by the lower Court is set aside and the revision is allowed. Consequently, application filed by the petitioner/2nd defendant to condone the delay for 4373 days is allowed.
16. In the result, the order of the learned District Munsif made in IA.No.2175 of 2004 in O.S.No.142 of 1991 dated 30.12.1991 is set aside. Accordingly, the Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed. No costs.
20.09.2010
Index : Yes / No
Internet :Yes / No
ssn
To
The District Munsif Court,
Alandur
V.PERIYA KARUPPIAH, J.,
ssn
Pre-delivery order in
C.R.P.NPD.No.3081 of 2010
and
M.P.No. 1 of 2010
20.09.2010