HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION NO. 1436 OF 2009 O R D E R : Heard Sri K. Govind, learned counsel for petitioners and Sri K. Ashok Rama Rao, learned counsel for respondents. 2. This Revision is filed challenging the order dated 29.1.2009 in I.A.No. 1002 of 2008 in O.S.No. 217 of 2005 of the Senior Civil Jduge, Sangareddy. 3. Petitioners herein filed the above suit for partition of the plaint schedule properties and for separate possession of 4/5th share each therein. The second defendant/first respondent herein was set ex-parte on 27.11.2006 and on 30.11.2006 an ex-parte decree was passed. I.A.No. 406 of 2007 was filed for passing of final decree. 4. Thereafter, on 24.7.2008, the second defendant/first respondent filed I.A.No. 1002 of 2008 under Order 9 Rule 13 CPC to set aside the ex-parte decree dated 30.11.2006. 5. In the affidavit filed in support of the said application, second defendant/first respondent stated that the petitioners have wrongly shown his name and address and managed to get ex- parte decree on 30.11.2006 in collusion with the first defendant in the suit; that he is completely unaware of the proceedings and came to know about the decree in the last week of June 2008 when he received a caveat notice sent by the first petitioner on 27.6.2008 through post; and that he then verified and came to know about the ex-parte decree passed against him. He stated that he did not receive any summons in the suit and on verification, he came to know that the respondents had secured an order of substituted service and got notice published in the Telugu Newspaper. He also pointed out that he went abroad for one year. He contended that his mother tongue was Marathi and he was not in the habit of reading a Telugu Newspaper and there was no carelessness or negligence on his part in appearing in the suit and protecting his interest. 6. Counter affidavit was filed by the petitioners to the said application denying the averments made by the first respondent. They claimed that the address of summons sent in the main suit and caveat notice was one and the same and the petitioner intentionally had not received the summons inspite of the notice sent by the Court and that was why paper publication was ordered in a Telugu Newspaper. 7. By order dated 29.01.2008, the Court below allowed I.A.No. 1002 of 2008 on condition of the first respondent depositing costs of Rs. 2,000/- on or before 16.2.2009. It held that the docket sheet of the suit showed that the summons were ordered to the first respondent several times and ultimately substitute service was resorted to by the Court on an application of the petitioners on 10.11.2006 and that the first respondent was set ex-parte on 27.11.2006 due to his absence inspite of publication made in the newspaper. It noticed that postal covers sent, including the suit summons, were returned with an endorsement that the addressee was continuously absent for seven days; in order to entertain an application under Order 9 Rule 13 CPC, the Court has to see whether the applicant satisfied the Court that the summons were not duly served and that he had no knowledge about the decree passed by the Court; the record available does not speak that the first respondent had knowledge about the suit proceedings earlier and intentionally avoided to appear before the Court; since the mother tongue of the first respondent is Marathi he would not see any publication made in the Telugu newspaper more so in ‘Praja Shakthi’ newspaper; and therefore, the petitioner had approached the Court within 30 days from the date of receipt of the caveat and his application therefore is within time. 8. Challenging the same, this Revision is filed. 9. Counsel for the petitioners contended that the Court below had erred in allowing the application viz., I.A.No. 1002 of 2008 filed by the first respondent to set aside the ex-parte decree against him; the first respondent had not adduced any evidence that he was not in India and he was abroad during the period when the suit had come up for trial and summons were sought to be served on him; and the first respondent had intentionally avoided service of summons since the address shown on the cover containing the summons is same as the address now communicated in this application. 10. Counsel for the first respondent on the other hand refuted these contentions and supported the order passed by the Court below. 11. Order 9 Rule 13 CPC states: “13. Setting aside decree ex parte against defendant:- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.” 12. In G.P. Srivastava V. R.K. Raizada[1], the Supreme Court held as under: “Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any ‘sufficient cause’ from appearing when the suit was called on for hearing. Unless ‘sufficient cause’ is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words ‘was prevented by any sufficient cause from appearing’ must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence, which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” 13. Thus unless sufficient cause is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside the ex-parte decree and words “was prevented by any sufficient cause from appearing” in Order 9 Rule 13 CPC require to be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. 14. In the present case, the name of the first respondent is “Narsing Rao Nimbalkar” and he is said to be a resident of “H.No. 2-2-647/28/1, Appaji Enclave, Flat No. C3, Central Excise Colony, Bagh Amberpet, Hyderabad”. But in the plaint, the first respondent is described as “Narsimha Rao” residing at “H.No. 22647/28/1, Appaji Enclave”. From this, it is clear that the first respondent had not been described correctly in the plaint and his address is also not shown correctly there. No wonder the summons sent by post could not be served on him. It is possible that the cover-containing caveat came to be served on him because his name was correctly mentioned on the postal cover. Therefore, it could be said that the petitioners had acted in a bonafide manner and that it was the first respondent who evaded service of summons. More over, substituted service was done by the petitioner in an obscure Telugu newspaper “ Praja Shakthi”, which has very limited circulation. It was not disputed by the petitioner that the first respondent’s mother tongue was Marathi and was not Telugu. Therefore, the first respondent cannot be blamed for not reading above Telugu newspaper and coming to know about the pendency of the suit. 15. In Najeebunnisa and others v. Mohammed Mahboob Ali Khan Afsar[2] this Court has held that publication of summons in newspaper cannot be said to be due service 16. In view of the above reasons, I am of the opinion that the Court below had rightly allowed I.A. No. 1002 of 2008 and set aside the ex-parte decree on condition of the first respondent depositing costs of Rs. 2,000/- on or before 16.2.2009. 17. Therefore, I do not find any merit in the Civil Revision Petition and accordingly, the same is dismissed. There shall be no order as to costs. 18. As a sequel thereto, miscellaneous petitions, pending if any, shall stand dismissed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 09.06.2015 KA [1] (2000) 3 SCC 54 [2] 2007 (4) ALD 1