* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMA + CIVIL REVISION PETITION No.962 of 2010 % Dated 29.06.2010 # Zulfeqar Hussain, S/o.Anwar Hussain Aged about 38 years, Business, R/o.20-2-F/32, A.P.Housing Board Colony, Hussaini Allam Road, Hyderabad …Petition V. $ Margadarsi Chit Fund Limited Rep by its Principal Officer & Senior Manager, Recovery Department, 5-10-195, Fateh Maidan Road, Hyderabad And others …Responden ! Counsel for the petitioner: Smt.K.N.Vijayalakshmi, Advocate ^ Counsel for the Respondents: Sri A.V.Sesha Sai for R1 < Gist : > Head Note: ? Cases Referred: THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.962 of 2010 Dated:- 29th June, 2010 Between: Zulfeqar Hussain …Petitioner AND Margadarsi Chit Fund Ltd., and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.962 of 2010 ORDER: 1. Aggrieved by the order dated 18.01.2010 passed in I.A.no.1833 of 2009 in O.S.No.3802 of 2008 by the III Junior Civil Judge, City Civil Courts, Hyderabad, the petitioner filed the present Civil Revision Petition, under Section 115 of Code of Civil Procedure, 1908, to set aside the said order. 2. The brief facts of the case are as follows: The first respondent herein is a chit fund company of which the petitioner became a member of chit for Rs.1,00,000/-. He became successful bidder and received chit amount after foregoing a part of it, i.e., about Rs.40,000/-. Learned counsel for the petitioner submits that the petitioner sustained loss in his business as one of the mulgies in which he was doing business was demolished under Land Acquisition proceedings and in the above circumstances, he could not pay monthly instalments of the chit. It is not in dispute that the first respondent filed O.S.No.3802 of 2008 in the Court of the III Junior Civil Judge, City Civil Courts, Hyderabad, for recovery of amounts due by the petitioner herein and in the said suit, the petitioner was set ex parte and an ex parte decree was passed on 30.07.2009 against the petitioner and his sureties. It is the case of the learned counsel for petitioner that the petitioner filed an application to set aside the ex parte decree and as there was some delay in filing the said application, I.A.No.1833 of 2009 has been filed to condone the delay. The learned III Additional Junior Civil Judge, City Civil Courts, Hyderabad, held that the envelope sent to the petitioner returned unclaimed and that under Section 3 of the General Clauses Act, when any cover returned with the endorsement ‘refused’ or ‘unclaimed’, it must be deemed that the addressee has the knowledge of the contents of the envelope and, therefore, the petitioner was rightly set ex parte. It was also observed that the petitioner has not properly explained the delay in filing the application and holding so, the application filed by the petitioner was dismissed. 3. It is also submitted by the learned counsel for the petitioner that notice against the petitioner was published in a news paper “Pledge Daily” which has no circulation in the locality in which the petitioner has been residing. Normally, paper publication should be given in a daily newspaper which has got wide circulation in the locality wherein the defendant has been residing or regularly doing business. 4. The only point that arises for consideration is whether publishing of notice in “Pledge Daily” is in accordance with the relevant rule and whether the impugned order is sustainable. 5. The practice of publishing notices in a paper which has no circulation in the locality where the person to whom such notice is intended cannot be appreciated and lower Courts should avoid such practice. Sub-Rule 1A of Rule 20 of Order V C.P.C. is as follows: (1A) Where the Court acting under sub- rule (1) orders service by an advertisement in a newspaper, the newspaper shall be daily newspaper circulating in the locality by which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. 6. Thus, it is clear that where the Courts orders service by publishing the notice in a newspaper, the conditions are that (1) it should be a daily newspaper; and (2) must have (wide) circulation in the locality in which the defendant / respondent is known to have actually and voluntarily resided or carried on business or personally worked for gain. 7. Therefore it appears that there is some force in the contention of the learned counsel for the petitioner publication of notice in a paper which has no circulation in the locality where the petitioner has been residing is not in conformity with the above quoted rule. In view of the same, I consider it just and reasonable to give an opportunity the petitioner. Of course, the observation of the Court below that once notice sent in a cover has been returned unclaimed or with an endorsement of refusal, the same should be treated as deemed service is correct and needs no interference. However since the publication of notice appears to have been made in a paper which has no circulation in the locality i.e., Hussainialam, Hyderabad, in which the revision petitioner has been residing, I consider it just and reasonable to set aside the impugned order and to given an opportunity to the revision petitioner to contest the matter. 8. Accordingly, the impugned order dated 18.01.2010 passed in I.A.no.1833 of 2009 in O.S.No.3802 of 2008 by the III Junior Civil Judge, City Civil Courts, Hyderabad, is set aside and consequently I.A.No.1833 of 2009 stands allowed with a direction to the Court below to register the application filed by the petitioner herein to set aside the ex parte decree and pass appropriate orders in accordance with law. At this stage, learned counsel for the revision petitioner submitted that the petitioner is prepared to pay monthly instalments @ Rs.2,000/- per month. In the circumstance, the Court below is also directed to take into consideration the monthly income of the petitioner and other circumstances, if any, explained by him and may fix reasonable instalments in case of passing a decree against him. Be it made clear that this order is restricted to the case of the petitioner alone and not to the other defendants in the suit since the decree against them appears to have become final. 9. In the result, the Civil Revision Petition is allowed. No costs. _______________________________ JUSTICE B.CHANDRA KUMAR June 29, 2010 Bvv