IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH NOVEMBER 2007 / 16TH KARTHIKA 1929 CMA.No. 196 of 2001() --------------------- AGAINST THE ORDER DATED 08/06/2001 IN IA. 6138 /2000 IN OS.1176/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/7TH DEFENDANT: --------- UNNIKRISHNAN, S/O.PARAMEL RAVUNNY, PURANATTUKARA VILLAGE AND DESOM, THRISSUR TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER SHEELA, W/O.UNNIKRISHNAN. BY ADV. SRI.T.M.CHANDRAN RESPONDENTS/RESPOHNDENTS/PLAINTIFF-DEFENDANTRS 2 TO 6: ----------- 1. SHABEENA, D/O.AMBALATH VEETTIL HAMEED, KOORKANCHERY VILLAGE AND DESOM, THRISSUR TALUK. 2. RAJITHA, D/O.LATE NEELAMBILLY RAGHAVAN, CHITTILAPPILLY VILLAGE AND DESOM, THRISSUR TALUK. 3. PREMAN, S/O.LATE NEELAMBILLY RAGHAVAN, -DO- -DO- 4. LATHA, D/O.LATE NEELAMBILLY RAGHAVAN, -DO- -DO- 5. SUMATHI, D/O.LATE NEELAMBILLY RAGHAVAN, -DO- -DO- 6. SHYLAJA, D/O.LATE NEELAMBILLY RAGHAVAN, -DO- -DO- BY ADV. SRI.JIJO PAUL SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 07/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- C.M.A.NO.196/2001 JUDGMENT Raman,J. When the case was taken up, none appeared. Name of the parties called. Absent. Dismissed for default. Sd/- P.R.RAMAN, JUDGE. 7th November, 2007 Sd/- V.K.MOHANAN, JUDGE. True Copy P.A. to Judge. P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.A. No. 196 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009. JUDGMENT Bhavadasan, J, Petition filed by the appellant for having the delay in filing the petition to set aside the ex-parte decree condoned and another petition to set aside the ex-parte decree were dismissed. The appellant was the seventh defendant in the suit. 2. The suit was one for specific performance. Plaintiff alleged that the predecessor-in-interest of defendants 2 to 6 had entered into an agreement for sale with him and had received an advance amount of Rs.25,000/- initially and thereafter received an additional amount of Rs.15,000/-. When the predecessor-in-interest of defendants 2 to 6 in the suit failed to execute the deed in terms of the agreement for sale, the suit was laid. 3. During the pendency of the suit, the original defendant died and his legal heirs were brought on party array. C.M.A. 196/2001. 2 They pointed out that the plaintiff had failed to perform his part of the contract and the property had already been assigned to the seventh defendant. The seventh defendant was thereafter brought on party array. 4. It is true that the seventh defendant is seen set ex- parte and the decree as far as he is concerned is an ex-parte decree. It is also seen from the judgment of the court below that the sale deed in his favour by additional sixth defendant and her father, the original defendant were set aside. The plaintiff was directed to deposit the balance sale consideration and on such deposit, defendants 2 to 6 were directed to execute the sale deed, failing which, the plaintiff was given liberty to get the deed executed through court. 5. The seventh defendant, who was set ex-parte and against whom an ex-parte decree was passed filed two interlocutory applications, namely I.A.6138 of 2000 and I.A. 6141 of 2000 for the purposes already made mention of. The seventh C.M.A. 196/2001. 3 defendant claimed that when the suit was instituted and thereafter he was abroad and he had no knowledge about the suit. No notice had been served on him. He came to know of the ex-parte decree only on 10.11.2000. As soon as he came to know about the ex- parte decree, he gave power of attorney to his wife and through her he had instituted the two petitions. He claimed that he had serious contentions in the suit and he was unaware of the proceedings. Since he came to know about the decree only on 10.11.2000, there was a delay of 153 days in filing the application and it was pointed out that in the interests of justice the ex-parte decree against him be set aside and he be given an opportunity to contest the suit on merits. It is also claimed that unless the suit is decided on merits, irreparable loss and injury will be caused to him. 6. The first respondent in the petitions filed counter disputing the claim made by the seventh defendant. It was pointed out that when the summons was initially returned with the endorsement that the seventh defendant was abroad as disclosed by C.M.A. 196/2001. 4 his wife, the first respondent herein had filed I.A.4907 of 1999 seeking substituted service. It is pointed out that the first respondent, who is the plaintiff in the suit, was not in a position to get the correct address of the seventh defendant, who had gone abroad. When that petition came up for hearing before the court below, Adv. Saji Narayanan, who was appearing for defendants 2 to 6 in the suit represented before court that he was also appearing for the seventh defendant. In the light of the said submission, the interlocutory application filed by the first respondent/plaintiff for service by affixture was dismissed. The case stood posted to 20.12.1999 for written statement of the seventh defendant. On that day, it was found that Adv.Saji Narayanan had not filed vakalth on behalf of the seventh defendant nor was the written statement filed. There was also no representation on behalf of the seventh defendant. It was under those circumstances that he was set ex- parte. Defendants 2 to 6 had very vehemently contested the suit, which according to the first defendant-plaintiff shows the C.M.A. 196/2001. 5 conspiracy between defendants 2 to 6 and 7. The intention is only to protract the proceedings and it was pointed out that there was no justification in the complaint now made by the seventh defendant. On the basis of these contentions, he prayed for dismissal of the petitions. 7. It is seen that neither side adduced evidence in support of their contentions. The court below on a meticulous consideration of the materials before it found that the claim of the seventh defendant that he was unaware of the proceedings cannot be accepted and that he had knowledge about the same. The court below went on to say that sufficient cause has not been made out to set aside the ex-parte decree and therefore the petitions were dismissed. The said order is assailed. 8. Learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the petitions. Even going by the records, summons is said to have been served on the seventh defendant by paper publication. True, C.M.A. 196/2001. 6 it is the mode of substituted service and may be termed as good service also. But it needs to be noticed that the seventh defendant was abroad and the newspaper in which the publication was made had no circulation in that place. According to the learned counsel in the light of the fact that there was a sale deed in his favour, it is inconceivable that he would not have contested the suit had he known about the same. Learned counsel maintains that the seventh defendant came to know about the decree only on 10.11.2000 when his wife got the information from his native place. Learned counsel pointed out that the court below ought to have taken a liberal view and should have given an opportunity to the petitioner to agitate his contentions. In support of his submissions, he relied on the decisions reported in Rabindra Singh v. Financial Commisisoner ((2008) 7 SCC 663) and Plantation Corporation of Kerala Ltd. v. Hussain ( 1998(1) KLT 1008). 9. Per contra, learned counsel appearing for the first respondent in this case pointed out that there was no bonafides or C.M.A. 196/2001. 7 good faith in the claim made by the petitioner before the court below. It is very evident from the records that the seventh defendant had knowledge about the suit and he was sitting on the fence. Even assuming that ultimately it could only be said that the service on the seventh defendant was by way of substituted service by means of paper publication, it is very evident that even long before that the seventh defendant had knowledge about the suit. In fact Adv. Saji Narayanan, who was appearing for defendants 2 to 6 had submitted before the court below that he seeks to file vakalath for and on behalf of the seventh defendant also. The first respondent-plaintiff filed a petition for substituted service by affixture in the last known residence of the seventh defendant. Learned counsel also drew attention of this court to the fact that it is not disclosed as to how the seventh defendant came to know about the decree on 10.11.2000 and what was the occasion for the same. Learned counsel also stressed that it is evident from the records that defendants 2 to 6 were very vehemently contested the C.M.A. 196/2001. 8 suit and had raised all the contentions which were available to the seventh defendant also. This clearly shows the collusion between the parties and it is very evident that the attempt is to defeat the right of the plaintiff. It was considering all the above facts and circumstances that the court below had come to the conclusion that the petitions were without any bonafides and had accordingly dismissed the same. 10. The suit, as already noticed, was one for specific performance. It is seen that a sum of Rs.25,000/- was initially received as advance by the predecessor in interest of defendants 2 to 6 and later he had received Rs.15,000/- in pursuance to the agreement between the parties. The plaintiff had sent a notice demanding performance by the first defendant. It was in reply to that notice that it was revealed that the property had been assigned to the seventh defendant. Soon thereafter the suit was laid. 11. The records indicate that when summons was taken out to the seventh defendant and the process server went to deliver C.M.A. 196/2001. 9 the summons, the wife of the petitioner in the petitions told the process server that the seventh defendant had gone abroad for employment and he is not available at home. The summons was returned. But it is only reasonable to presume that she would have known the purpose for which the process server had reached the house of seventh defendant. 12. It is true that a person, against whom an ex-parte decree has been passed has three options. They are, i) to take recourse to Order IX Rule 13 of the Code of Civil Procedure, ii) to appeal against the ex-parte decree against him and iii) to seek a review of the judgment. 13. The three different remedies available stand on different footing. In the case of the petition under Order IX Rule 13 the enquiry is confined to sufficiency of the cause shown by the petitioner for his non-appearance on the day when the case was posted for hearing. The Explanation to Order IX Rule 13 also says that if an appeal has been preferred against the ex-parte decree and C.M.A. 196/2001. 10 the appeal has been disposed of other than the ground that the appellant had withdrawn the appeal, an application under Order IX Rule 13 is not maintainable. As far as the remedy by way of review is concerned, the grounds under Order 47 Rule 1 will have to be established. In the case of an appeal from an ex-parte decree, the enquiry is confined to finding out whether the court below was justified in passing a decree in favour of the plaintiff on the materials on record. The question as to whether the person against whom an ex-parte decree was passed had shown sufficient cause for his non-appearance is not a ground that would be urged in an appeal from an ex-parte decree. 14. Coming to the case on hand, the seventh defendant in the suit had filed an application under Order IX Rule 13 as well as an appeal against the ex-parte decree. The appeal filed by him is A.S. 215 of 2002. 15. If this court deals with A.S.215/2002 and dispose of it on merits otherwise than by withdrawal by the appellant, the C.M.A. 196/2001. 11 petition under Order IX Rule 13 becomes not maintainable and the appeal against the said petition need not be considered. But considering the issues involved, it was felt that this court may first consider the appeal against the order refusing to set aside the ex- parte decree on a petition filed under Order IX Rule 13. 16. It is true that in the two decisions cited by the learned counsel for the appellant, it is said that a liberal view has to be taken. In the decision reported in Plantation Corporation of Kerla Ltd. v. Hussain (1998(1) KLT 1008) while dealing with the scope of Order IX Rule 9, this court had occasion to observe that if sufficient cause is shown by the petitioner, the court has an obligation to set aside the decree. In the decision reported in Rabindra Singh v. Financial Commissioner ((2008) 7 SCC 663) on facts it was found that it could not be said that there was proper service of summons on the person who sought for setting aside the ex-parte decree. C.M.A. 196/2001. 12 17. One may now refer to Article 123 of the Limitation Act. It reads as follows: “123. To set aside a decree Thirty days The date of the decree or passed ex parte or to where the summons or re-hear an appeal notice was not duly decreed or heard served, when the ex parte. applicant had knowledge Explanation.- For the of the decree. Purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.” The above provision shows that for the purpose of Article 123 service under Order V Rule 20 shall not found to be deemed service. The time begins to run in such cases only from the date of knowledge of the decree. But that presumption is only for a limited purpose. One cannot omit to note Order V Rule 20 sub- rule (2). 18. Coming to the merits of the petitions, it has to be said that the court below had gone into the matter in detail and has come to the conclusion that there was no bonafides. 19. It is significant enough that the petitions for setting C.M.A. 196/2001. 13 aside the ex-parte decree and to condone delay were filed by the power of attorney holder of the seventh defendant, who is none other than his wife. One may at once recall here that it was she who had told the process server when he went there to serve summons to the seventh respondent that the seventh respondent was abroad on employment. At that time, it is only natural to presume that she would have enquired about the matter. In the light of the above fact, the submission made by the counsel for defendants 2 to 6 before the court below, when the petition for service by affixture on the seventh respondent had come up for consideration is to be considered. It is seen recorded that initially Adv.Saji Narayanan had submitted that he will be appearing for the seventh defendant also, and it was on that basis that the petition for affixture filed by the plaintiff was dismissed. Recording that submission, the court below had posted the case to 20.12.1999 for the written statement of the seventh defendant. If as a matter of fact, the Advocate appearing for defendants 2 to 6 had made such a C.M.A. 196/2001. 14 submission, obviously it must have been on instructions from defendant No.7 or atleast his wife, the power of attorney holder, who filed the present petitions. The court below was therefore fully justified in drawing the conclusion that the seventh defendant was aware of the suit. 20. Only when it was found at a later stage that defendant No.7 has not filed vakalath and also not filed written statement he was set ex-parte after notice served by publication. It was not necessary that the newspaper in which the publication is made should have circulation in the area where the seventh defendant was on employment. The provision is to the effect that the publication would be in a daily newspaper, which has circulation in the area where the defendant concerned had last resided. There is nothing to indicate that the paper in which the publication was made has no circulation in the area where the seventh defendant had last resided. 21. It is interesting to note that in support of the C.M.A. 196/2001. 15 petition to set aside the ex-parte decree as well as the petition to condone the delay, it is stated that the seventh defendant came to know of the ex-parte decree only on 10.11.2000. It is seen from the affidavit that the wife of the seventh defendant was given information about the decree by the second defendant. There is nothing in the affidavit or petition about the occasion for the second defendant to meet the wife of the seventh defendant and disclose about the fact to her. It is here that one suspects of collusion between defendants 2 to 6 and seventh defendant. If as a matter of fact the information was gathered from defendant No.2, obviously defendant No.2 would have informed about the pendency of the suit. There was no reason disclosed in the affidavit as to how defendant No.2 had met the wife of the seventh defendant to disclose the passing of the ex-parte decree. 22. There is yet another fact. Along with the suit, it is seen that there was a petition for attachment. It is seen that an interim attachment was granted. The assignment in favour of the C.M.A. 196/2001. 16 seventh defendant is after the order of attachment. This fact also needs to be taken note of. 23. It is also significant to notice that no evidence whatsoever was adduced by the petitioner in support of his claims. It is not possible to understand as to why the power of attorney holder was shy to go into the box and adduce evidence in support of the contentions. The reason seems to be obvious. The power of attorney holder, who is none other than the wife of the seventh defendant, would have been confronted with inconvenient questions, which would make things more difficult for the petitioner. It was a deliberate act on the part of the power of attorney in not going into the box and deposing in support of the allegations made in the affidavit. 24. As rightly noticed by the court below, defendants 2 to 6 had very vehemently contested the suit. If as a matter of fact they had no interest in the property, it was unnecessary for them to do so. That gives an indication regarding the fact that it was C.M.A. 196/2001. 17 defendants 2 to 6, who are really interested in the matter and defendant No.7 was only their stooge. He was sitting on the fence waiting for the result and when defendants 2 to 6 lost their case, they have now come through seventh defendant to establish their claim. In the above facts and circumstances, the court below was perfectly justified in coming to the conclusion that there was no bonafides in the petitions and no sufficient cause has been shown to set aside the ex-parte decree. The result is that this appeal is without merit and it is liable to the dismissed. We do so with cost of Rs.1500/- to the first respondent. P.R. Raman, Judge P. Bhavadasan, Judge sb. C.M.A. 196/2001. 18 P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.A. No. 196 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 06.08.2009.