IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-09-2011 Coram THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B. RAJENDRAN O.S.A. No. 47 of 2011 K.S. Rajendhiran .. Appellant Versus 1. Dr. M.R. Muralikrishnan 2. M. Arthi .. Respondents Appeal filed under Section 36 Rule (i) of Original Side Rules read with Clause 15 of the Letters Patent against the order dated 18.02.2010 made in Application No. 3447 of 2008 in C.S. No. 923 of 2002 on the file of this Court. For Appellant : Mr. S. Doraisamy, Senior Counsel for Mr. Kandhan Duraisami For Respondents : Mr. R. Sankaranarayanan for Ms. K. Sumathi JUDGMENT Judgment of the Court was delivered by B. RAJENDRAN, J The appellant has come forward with this appeal against the order dated 18.02.2010 dismissing his application No. 3447 of 2008 in C.S. No. 923 of 2002 which was filed for condoning the delay of 1281 days in setting aside the exparte decree dated 29.12.2004 passed in the suit. 2. According to the appellant, he, along with the the first respondent carried on partnership business for mining and quarrying granite blocks as per the memorandum of understanding entered into between them as early as on 06.06.1996. The partnership business was stopped on and from August 1996 due to misunderstanding between the partners. Thereafter, based on a complaint given by the first respondent herein to the police complaining non-payment of amount, the appellant was arrested. During his police custody, at the instigation of the respondents herein, the signatures of the appellant were obtained in blank papers and it was utilised by the respondents to file the suit in C.S. No. 923 of 2002 against the appellant. The appellant would further contend that he came to know about the exparte decree dated 29.12.2004 passed in the suit only when he returned from Andhra Pradesh to Chennai and found that the summons in respect of EP No. 113 of 2006 in C.S. No. 923 of 2002 in Proclamation case No.1 of 2007 were affixed on his houe at No.54, https://hcservices.ecourts.gov.in/hcservices/ Gajapathy Street, Shenoy Nagar, Chennai – 600 030 on 28.04.2008. Therefore, he came to know about the exparte decree dated 29.12.2004 passed in the suit only on 28.04.2008. As the suit itself was filed, based on a fabricated agreement dated 23.01.2001, for recovery of a sum of Rs.50,00,000/- together with interest at the rate of 24% per annum on Rs.24,00,000/-, in which the exparte decree dated 29.12.2004 was passed without serving summons on him, the exparte decree is liable to be set aside. Even though the plaint indicates the address as No.54, Gajapathy Street, Shenoy Nagar, Chennai, he was not regularly residing there. Even the substituted service ordered by the Court prior to granting the exparte decree was not a true and proper service. The suit summons have not been served nor the summons in the Execution Petition served on him. Since there is no proper compliance to the provisions contained in Order V Rule 2 of CPC, in respect of service of summons, he has filed the present application to set aside the exparte decree. As there was a delay caused in filing the application to set aside the exparte decree dated 29.12.2004, inasmuch as he came to know about the exparte decree only on 28.04.2008, the delay is justified and immediately on coming to know about the exparte decree on 28.04.2008, he filed the application for setting aside the exparte decree. 3. The first respondent vehemently resisted the application filed by the appellant on the ground that the appellant was not a business partner along with the first respondent and there is no partnership agreement between them. The appellant received Rs.17 lakhs by way of two cheques, Rs.2 lakhs in cash and another sum of Rs.5 lakhs in cash separately. Ultimately, an agreement was entered into between the appellant and the first respondent herein to that effect. After receiving Rs.24 lakhs from the first respondent, the appellant, instead of utilising it for his business needs spent the amount for his personal needs. In fact, the money was paid when the appellant was a tenant under the respondents herein and the appellant also agreed to pay the amount with interest. As the appellant did not repay the amount within six months as agreed, the agreement dated 23.01.2001 was executed, whereby the appellant agreed to pay the amount within six months. In spite of lapse of time, since the appellant has not come forward to pay the amount, the suit was filed. Originally the suit was filed along with an application for attachment and the summons in the said application were duly served on the appellant through court. On receipt of the summons, the appellant appeared before the Court by engaging a counsel and took time for filing counter on various dates. Subsequently, the counsel engaged by the appellant reported no instructions and only thereafter, the application was ordered exparte. Further, the notice was also taken by means of paper publication. Only thereafter, the suit was decreed exparte on 29.12.2004. Therefore, the appellant, having entered appearance through an advocate to contest the matter in so far as the application for attachment before judgment is concerned, it is not open for the appellant to contend that summons were not served on him and therefore the exparte order in the suit has to be set aside. Once the appellant entered appearance by engaging an advocate of his choice and also filed Vakalath, the Vakalath has to be construed as an authorisation to the advocate to contest the suit and it cannot be restricted only for defending the interlocutory application. https://hcservices.ecourts.gov.in/hcservices/ 4. The first respondent also would contend that in a corresponding criminal case in Crl.MP No. 1644 of2006 on the file of the learned Chief Metropolitan Magistrate, Chennai, the appellant himself filed an affidavit into the Court on 18.12.2006 through his advocate by stating that he had knowledge about the exparte decree dated 29.12.2004 passed in C.S. No. 923 of 2002 and he is taking steps to contest the suit on merits. Having filed such an affidavit even on 18.12.2006 in a corresponding criminal case, it is no longer open for the appellant to aver in the application to condone the delay in setting aside the exparte decree dated 29.12.2004 passed in C.S. No. 923 of 2002 that he had no knowledge about the exparte decree and for the first time he came to know about the exparte decree only on 28.04.2008 when the summons were affixed on his residence. The application No. 3447 of 2008 in C.S. No. 923 of 2002 to condone the delay in setting aside the exparte decree dated 29.12.2004 is devoid of any merits. The appellant has not shown sufficient reason or cause to file the application. The application lacks merits. 5. We have heard the learned Senior counsel for the appellant as well as the learned counsel for the respondents. The learned Senior Counsel appearing for the appellant would mainly contend that Order V Rule 2 of CPC contemplates service of summons along with plaint copy in a suit. In this case, there is failure to comply with the provisions of Order V Rule 2 of CPC inasmuch as the summons were not served along with the plaint copy and therefore, the question of limitation does not arise The application to condone the delay in setting aside the exparte decree dated 29.12.2004 is maintainable as it was filed immediately from the date on which the appellant came to knowledge about the exparte decree on 28.04.2008. The learned Senior Counsel for the appellant also relied on Section 123 of the Limitation Act to demonstrate that the paper publication effected is not proper. He would mainly contend that the appellant came to know or knowledge about the exparte decree dated 29.12.2004 only for the first time on 28.04.2008 when the summons relating to the Execution Proceedings and Proclamation Case No. 1 of 2007 were affixed on his residence. The learned senior counsel also contends that earlier, the appellant engaged an advocate to contest the interlocutory application filed for attachment of the property. The vakalath signed by the appellant was only in respect of that interlocutory application and not for defending the suit. 6. We are not in agreement with such an argument of the learned Senior counsel for the appellant. In fact, such an argument was made on behalf of the appellant before the learned single Judge and it was rejected by the learned single Judge as fallacious. First of all, an application for attachment of immovable property before judgment cannot be filed without a suit. In fact, in the interlocutory application, the appellant was cited as respondent/defendant. When a person signs a vakalath authorising his advocate to prosecute or defend a proceedings, particularly in a suit, it can be taken as a Vakalath for prosecuting or contesting the main suit and it cannot be restricted to only the interlocutory application or applications. Whenever an advocate files vakalath in a suit, the suit number will be mentioned and it cannot be said that https://hcservices.ecourts.gov.in/hcservices/ the Vakalath only bears the number of the interlocutory application alone. Such vakalath filed by the advocate will also be registered in the register maintained by the Registry. Therefore, it cannot be said that the Vakalath was filed only in respect of the interlocutory application and not for contesting the suit. Such an argument of the learned senior counsel for the appellant, therefore, cannot be countenanced. If such an argument is entertained or accepted, it would lead to drastic consequences in the lower judiciary in disposing of the cases. 7. The next argument of the learned Senior counsel for the appellant is that the summons received by the appellant, by means of affixure, do not contain the enclosure along with it namely copy of the plaint, affidavit or petition. If a vakalath is filed on receipt of summons received without enclosing the plaint copy by the other side in compliance with Order V Rule 2 of CPC, it is the usual practice for the advocate who files vakalath on behalf of his client to get the plaint copy and other documents either from the Registry or from the other side. If we look into the affidavit filed by the appellant to condone the delay in setting aside the exparte decree dated 29.12.2004, nothing was mentioned as to whether the copy of the plaint, affidavit or petition was not received by him. 8. The next point for consideration is whether the appellant came to know about the exparte decree dt.29.12.2004 only on 28.04.2008, as pleaded. 9. The appellant appeared through his counsel to defend the interlocutory application filed along with the suit for attachment of the immovable property before judgment. The appellant took time to file his counter and time was also granted by this Court. Subsequently, without filing a counter, the counsel engaged by the appellant reported no instructions. Thereafter, the learned single Judge thought it fit to issue further summons to the appellant by means of paper publication in newspapers. In this context, if we look into Section 123 of the Limitation Act, it would only indicate that any service, in so far as it relates to substituted service under Rule 20 of Order V CPC shall not be deemed to be due service. This will not apply to the facts of the case. Here, the appellant had knowledge about the pendency of the suit and he was also duly served in the interlocutory stage. The appellant also filed vakalath through his advocate, sought time to file counter, but without filing counter, the advocate engaged by the appellant reported no instructions. Under those circumstances, it cannot be said that the service made by means of paper publication is not an effective or due service. The substituted service was in addition to the actual earlier service and after the appellant appeared through an advocate. 10. Under Order V Rule 2 of CPC, no doubt, there is a mandatory rule that provides for service of summons by means of substituted service i.e., paper publication. Merely because service was made by means of paper publication, it cannot be construed that service in the normal mode was not proper or correct. What is contemplated in Section 213 of the Limitation Act is an application to set aside a decree passed exparte or to re-hear an appeal decreed or heard exparte has to be filed within 30 days from the date of the decree or https://hcservices.ecourts.gov.in/hcservices/ where the summons or notice was not duly served, from the date of knowledge of the decree. Normally, the date of knowledge of filing or pendency of a case will be from the date of original receipt of the summons in the suit. Even other wise, the appellant himself admitted that in the corresponding criminal case in Crl.MP No. 1644 of 2006, he has filed an affidavit as early as on 18.12.2006 stating that "he had knowledge about the exparte decree passed against him on 29.12.2004 in C.S. No. 923 of 2002, since there is a threat to his life at Madras, he was residing at Hyderabad and therefore he could not contest the suit on merits. Only when he came back to Chennai, he came to know about the exparte decree passed against him and immediately, he filed the application to set aside the exparte decree." The appellant, having filed such an affidavit as early as on 08.12.2006 in the criminal case stating that he knows the passing of the exparte decree and taking steps to contest the suit on merits, is estopped from pleading to the contra. Therefore, it is clear that in the application to condone the delay in setting aside the exparte decree dated 29.12.2004 or in the affidavit filed in support of the petition to condone the delay, the appellant had deliberately omitted to mention the affidavit dated 08.12.2006 filed by him in Crl.M.P. No. 1644 of 2006. 11. Even in the application filed in support of the petition to condone the delay of 1281 days, the appellant has not assigned any convincing reasons. There are three stages to be looked into in this case. In the first stage, when the suit was originally filed in the year 2002, the appellant entered appearance through an advocate and thereafter the advocate reported no instructions. Therefore, paper publication was ordered to be effected and only thereafter, the exparte decree dated 29.12.2004 was passed in the suit. In the second stage, in the year 2006, in a corresponding criminal case in Crl.MP No. 1644 of 2006, on 18.12.2006, the appellant himself filed an affidavit stating that he is aware of the exparte decree dated 29.12.2004 passed in C.S. No. 923 of 2002 and he is taking steps to contest the case on merits. In the third stage, the appellant alleged that he was served summons in Proclamation No. 1 of 2007 in E.P. No. 113 of 2006 in C.S. No. 923 of 2002 only by means of affixture and he came to know about the pendency of the suit only on 28.04.2008. If these three stages are looked into, it is clear that the appellant had given contradictory statement, besides, these facts were not properly disclosed by the appellant in the affidavit filed in support of the application for condonation of delay of 1281 days in filing the application to set aside the exparte decree dated 29.12.2004. Therefore, the argument advanced by the learned senior counsel for the appellant that from the date of knowledge i.e., 28.04.2008 the appellant had filed the application to set aside the exparte decree dated 29.12.2004 and therefore it is maintainable is liable to be rejected. Further, even after the affixture on 28.04.2008, the application to set aside the exparte decree was not filed immediately and it was filed only on 3rd July 2008, which is also beyond 30 days from 28.04.2008 for which also there is no explanation offered by the appellant. 12. As rightly pointed out by the learned single judge, the affidavit sworn by the appellant in respect of the application under Section 5 of the Limitation Act is devoid of truth and it was https://hcservices.ecourts.gov.in/hcservices/ deliberately made for the purpose of this application and it lacks bonafides. We do not find any reason to interfere with such a finding rendered by the learned single Judge. As we also find that there is no convincing reason assigned by the appellant either to condone the delay or to set aside the exparte decree dated 29.12.2004, we are not inclined to interfere with the well considered order passed by the learned single Judge dismissing the application for condonation of delay. 13. In this connection, the learned senior counsel for the appellant would vehemently contend that the suit, at the threshold, has to be rejected as it is barred by limitation. The suit was decreed exparte and merely because there is a delay in setting the exparte decree, the appellant should not be curtailed or prevented from defending the vexatious suit and therefore, in order to meet the ends of justice, the application to condone the delay in setting aside the exparte decree dated 29.12.2004 has to be allowed by setting aside the order passed by the learned single Judge. In this connection, the learned Senior Counsel for the appellant relied on the decision reported in (The Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others) AIR 1987 SC 1353 to contend that the delay in filing the application to set aside the exparte decree has to be set aside as there is a reasonable ground made out by the appellant that the suit itself is barred by limitation. The learned senior counsel for the appellant also pointed out para-10 of the plaint to contend that the last payment was made on 22.11.1996, whereas, the agreement, based on which the suit was filed, was dated 23.01.2001 and therefore, there cannot be an acknowledgment of liability as contemplated under Section 18 of the Limitation Act or effect of payment on account of such debt as provided under Section 19 of the Limitation Act extending the period of limitation beyond the statutory period. According to the learned senior counsel for the appellant, when the last payment was made only in the year 1996, even though an alleged agreement was entered into between the parties on 23.01.2001, it will not extend the period of limitation and therefore, the suit ought to have been rejected at the threshold. In any event, the learned Senior counsel submitted that the appellant has to be given a chance to defend the vexatious suit so that the adjudication will be on merits. 14. We are not in agreement with such an argument advanced by the learned Senior Counsel for the appellant. If really the appellant was aware that the suit has to be dismissed at the threshold as it was vexatious, at the earliest point of time, even in the year 2002 when he engaged an advocate to defend the suit, he could have raised such a plea by filing a counter or written statement, but it was not done. The appellant simply allowed the interlocutory application as well as the suit to be allowed to be decreed exparte by not furnishing any intimation to his counsel. As mentioned above, the appellant filed an affidavit on 18.12.2006 in a criminal proceedings instituted against him in which he admitted that he had knowledge about the exparte decree passed in the suit and taking steps to defend the suit on merits, but even thereafter, the appellant failed to take any steps and only after two years i.e., on 03.07.2008, the appellant filed the present application No. 3447 of 2008 to set aside the exparte decree. In this context, it has to be https://hcservices.ecourts.gov.in/hcservices/ pointed out that under Section 25 (3) of the Indian Contract Act, an agreement can be entered into even to pay a time barred debt. Therefore also, the argument of the counsel for the appellant cannot be accepted. The suit itself was filed in the year 2002, on the basis of agreement dated 23.01.2001 and at this stage, it is not open to the appellant to contend that the suit is barred by limitation. All is not well with the appellant as he failed to approach the Court in time and with clean hands. The appellant, having engaged an advocate at the earliest point of time is estopped from contending that the suit is vexatious or he was not afforded reasonable opportunity to defend the suit on merits. Therefore, we are not inclined to decide the merits of the case. 15. In the context, we are fotified by the decision of the Division Bench of this Court reported in (Sundar Gnanaoliva rep. By power of attorney agent Mr. Rukmini vs. Rajendran Gnanavolivu rep. By power of Attorney Agent Velina Gnanavolivu) 2003 1 Law Weekly 585, wherein it was held that when the applicant has not come to the Court with clean hands and the averments made in the affidavit are totally devoid of truth and lacking bonafide, definitely such a case is not an exceptional case warranting a liberal approach in condoning the delay or showing any leniency. In the light of the said decision of the Division Bench of this Court, inasmuch as the appellant had not approached this Court with clean hands and suppressed many material particulars, we are not inclined to adopt a liberal approach in affording another opportunity to the appellant to contest the suit or to condone the inordinate delay of 1281 days in filing the applicant to set aside the exparte decree. 16. It is well settled that in dealing an application to set aside the exparte decree or condoning the delay in setting aside an exparte decree, the Court will not deal with the merits of the case. Yet, the learned Senior counsel for the appellant vehemently contended to consider the merits of the case mainly on the question of limitation. We do not want to express any opinion on the merits of the suit. Moreover, the correctness or otherwise of the exparte decree passed in the suit is not the subject matter of this appeal and what is questioned in this appeal is the order passed by the learned single Judge dismissing the application filed by the appellant to condone the delay of 1261 days to set aside the exparte decree dated 29.12.2004 in C.S. No. 923 of 2002. 17. The learned senior counsel for the appellant relied on the decision reported in (Nahar Enterprises vs. Hyderabad Allwyn Limited and another) (2007) 9 Supreme Court Cases 466 to contend that as per this decision, when summons have not been properly served, as contemplated under Order V Rule 2 of CPC, then the question of limitation for setting aside the exparte decree would commence only from the date when the appellant had knowledge about the exparte decree. As the summons were not served to the appellant together with a copy of the plaint, as contemplated under Order V Rule 2 of CPC, such a service is deemed to be an insufficient service and consequently Article 123 of the Limitation Act will be attracted and therefore, the appellant is legally entitled to seek for condonation of delay. https://hcservices.ecourts.gov.in/hcservices/ 18. When we look into the aforesaid decision of the Honourable Supreme Court, it is evident that the respondent therein had filed the suit for recovery of a sum of Rs.1,87,904.62 with future interest at the rate of 18.5% per annum against the appellant. In that suit summons were not served and therefore the Court below adjourned the matter to 02.12.1988. Subsequently, summons were served on the appellant on 14.10.1988, but according to the appellant, a copy of the plaint was not served on him along with the summon. Therefore, the appellant sent a telegram on 17.10.1988 to the Court