1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.334 OF 2010 Shri Jose Sarat Paes, House no.1006, Bainfoll, Assolna, Salcete, Goa. .... Petitioner V e r s u s Shri Mangaldas Pundalik Naik, House No.200, Calcondem, Margao, Goa. .... Respondent Mr. A.F. Diniz, Advocate for the Petitioner. Mr. S.S. Kakodkar, Advocate for the Respondent. Coram: A.P. Lavande, J. Reserved on 22/09/2010. Dictated on : 29/09/2010. ORAL JUDGMENT: Heard Mr. A.F. Diniz learned counsel 2 for the petitioner and Mr. S.S. Kakodkar, learned counsel for the respondent. 2. Rule. By consent of the learned counsel for the parties heard forthwith. 3. By this petition under Article 227 of the Constitution of India the petitioner challenges the judgment and order dated 23/3/2010 passed by the Adhoc Additional District Judge-2, FTC II, Margao in Miscellaneous Civil Appeal no.79 of 2010 and judgment and order dated 29/6/1999 dated passed by the Additional Civil Judge Junior Division in Civil Miscellaneous Application no.85/2000/II whereby the application filed by the petitioner under Order IX, Rule 13 of Code of Civil Procedure has been dismissed. 3. Respondent herein filed Special Civil Suit No. 3 82/1997/II against the petitioner seeking recovery of amount of Rs.2.00 lakhs with interest . The learned trial Judge passed ex- parte decreed dated 29/6/1999 decreeing the suit filed by the plaintiff. On 29/1/2000 the respondent through his attorney Smt. Maria Ivona Gama filed Civil Miscellaneous Application No.85/2000/II under Order IX Rule 13 of C.P.C for setting aside ex-parte decree primarily on the ground that the respondent/defendant at the relevant time was in Kuwait and was not served in accordance with law. The application was opposed by the plaintiff. 4. On behalf of the defendant, his attorney Maria Ivona Gama was examined. The plaintiff examined himself and two witnesses namely, Esso Naik and Pundalik Gad who according to the plaintiff had effected substituted service on the defendant and his attorney. 4 5. The learned trial Judge by order dated 9/10/2009 dismissed the application holding that the summons was duly served and that the defendant had not proved that he had sufficient cause for non-appearance when the suit was called out for hearing. 6. The petitioner challenged this order by filing an appeal to the District Court South Goa, Margao which was made over to the Additional District Judge. The Lower Appellate Court dismissed the appeal. The lower Appellate Court held that the defendant was not duly served with summons but held that the application was not filed within the period of limitation. 7. Mr. A.F. Diniz, learned counsel appearing for the petitioner submitted that the finding of the lower appellate Court that the application was not filed within the period of limitation is contrary to the evidence on 5 record in as much as the statement made by the attorney on oath that she got knowledge of the ex-parte decree on 11/1/2000 has not been specifically challenged in her cross-examination. According to Mr. Diniz the limitation period of 30 days in terms of Article 123 of the schedule to the Limitation Act starts from the date of knowledge and since the application was filed on 29/1/2000, the application filed for setting aside ex-parte decree was within limitation. Therefore, the lower appellate Court has not exercised jurisdiction in accordance with law. In support of his submission that the period of limitation begins from the date of knowledge when the summons is not duly served. Mr. Diniz placed reliance upon the judgment of the Apex Court in the case of Nahar Enterprises Versus Hyderabad Allwyn Ltd. and anr. 2007 (9) SCC 466. Mr. Diniz further submitted that the impugned orders would cause serious prejudice to the defendants in as much as he has been deprived of an 6 opportunity to contest the suit on merits. 8. Per contra, Mr. Kakodkar, learned counsel for the respondent/plaintiff supported the order passed by the trial Court. He submitted that the learned trial Court was perfectly justified in answering both the issues against the defendant. He further submitted that the finding given by the lower Appellate court that the application was not filed within the period of limitation is based on the evidence on record in as much as the attorney in her evidence has clearly stated that she did not know the plaintiff. Mr. Kakodkar assailed the finding of the lower Appellate Court that the summons on the defendant was not properly served and submitted that the lower Appellate Court clearly erred in reversing the finding of the trial Court that the summons was property served on the defendant. Mr. Kakodkar further submitted that the facts and circumstances do not justify exercise of extraordinary 7 jurisdiction by this Court under Article 227 of the Constitution of India. 9. I have considered the rival submissions and perused the record. 10. As stated above, in support of the application the attorney of the defendant was examined and the respondent beside himself examined two witnesses. The trial Court held that the summons was duly served on the defendant. The lower Appellate Court in paragraphs 24 to 28 considered the aspect of service of summons on the basis of the evidence of the witnesses and came to the conclusion that the defendant was not properly served. The record discloses that initially the summons was pasted on House No.1007 and thereafter, the summons was sought to be served on the attorney of the defendant and according to the plaintiff since she refused the summons, 8 the summons was pasted on the shop where the defendant was carrying on business. The lower Appellate court upon analysis of the evidence came to the conclusion that the evidence of the bailiff that the lady was the attorney of the defendant could not be accepted, since the same did not find place in the document itself. I do not find any perversity or illegality in the said finding. Moreover, admittedly, the defendant was not in India at the relevant time and summons was sought to be served on his attorney. Therefore, I do not find any perversity or illegality in the finding recorded by the lower Appellate Court that the summons was not duly served on the defendant. 11. The lower Appellate Court held that the application was not filed within the period of limitation. Article 123 of the Schedule to the Limitation Act provides that the application for setting aside the ex-parte decree 9 has to be made within 30 days from the date of the decree or when the summons was not duly served when the appellant had knowledge of the decree. In the present case I have already held that the finding of the lower Appellate Court that the summons was not duly served cannot be faulted. Obviously therefore, the application had to be filed within 30 days of the date of the knowledge of the decree. The judgment relied upon Mr. Diniz in the case of Nahar Enterprises also lays down that in case summons is not duly served, the period of limitation of 30 days starts from the date of knowledge of the decree. 12. Perusal of the impugned order of the lower Appellate Court discloses that the Court held that the case of the defendant that the attorney came to know about the decree on 11/1/2000 could not be accepted, in view of the statement made by the attorney in her cross examination that she did not know the plaintiff. The lower Appellate 10 Court further held that the defendant has not proved the starting point of limitation. 13. Upon careful scrutiny of the evidence of the attorney Smt. Maria Ivonne Gama discloses that in her examination -in-chief she stated that she was informed by the plaintiff about the decree on 11/1/2000. In the cross- examination she stated that she did not know the plaintiff. I find it difficult to accept the reasoning of the lower Appellate Court that since the attorney had stated that she did not know the plaintiff, the defendant's case could not be accepted. The constituted attorney in her evidence stated that she got knowledge of the ex-parte decree on 11/1/2000. The evidence of the witness has to be read as whole. In her cross examination no suggestion was put to her that she did not get knowledge of the decree on 11/1/2000 as claimed by her. Moreover, the fact remains that the knowledge of the decree is attributed only to the 11 attorney and not to the defendant. The fact remains that at the time of passing of the decree the defendant was out of India. 14. Considering all the above facts, I am of the considered opinion that the finding of the lower Appellate Court that the application was not filed within the limitation period is unsustainable in law. The defendant deserves to be given an opportunity to contest the suit on merits. The finding recorded by the lower Appellate Court that the application for setting aside the decree was not filed within the period of limitation deserves to be quashed and set aside and is hereby quashed and set aside. 15. Order IX, Rule 13 of C.P.C provides for setting aside the ex-parte decree subject to terms such as costs or payment in the Court, as the Court deems fit. In the judgment relied upon by Mr. Diniz, the Apex Court has set 12 aside the ex-parte decree in a suit filed for recovery of Rs. 1,87,904.62 with interest and directed the defendant/appellant to deposit Rs.15,000/- in the Court. Considering the facts of the present case I am of the considered opinion that while set aside the ex parte decree it would be just and proper to direct the petitioner to deposit Rs.20,000/- (Rupees Twenty thousand only) in the trial Court. 16. In the result, therefore, the impugned judgment and order to the extent it holds that the application is not filed within the period of limitation and dismisses the application for setting aside ex-parte decree is quashed and set aside. Consequently the ex-parte decree dated 29/6/1999 passed in Special Civil Suit No.82/97/II is quashed and set aside subject to the respondent depositing the amount of Rs.20,000/- (Rupees twenty thousand only) in the trial Court within the period of six weeks from 13 today. In the event the defendant fails to deposit the said amount within six weeks this order shall stand recalled. 17. In the event the petitioner/defendant deposits the said amount within the time prescribed, the trial Court shall invest the said amount in any nationalized bank initially for a period of 13 months to be renewed from time to time. The payment of the said amount shall be subject to result of the suit. 18. The parties either personally or through their advocates shall appear before the trial court on 25th October, 2010 at 10.a.m. Mr. Kakodkar learned counsel for the respondent/plaintiff submits that since the suit is of the year 1997, hearing of the suit be expedited. I find merit in the submission. Accordingly, the learned trial Judge is directed to dispose of the suit expeditiously and in any case on or before 30/12/2011. 14 18. Rule is made absolute in the aforesaid terms. Costs in favour of the respondent are quantified at Rs. 1500/- (Rupees One thousand five hundred only). A. P. Lavande, J. Ap/-