IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 CRP.No. 165 of 2011() -------------------------------- CMA.16/2008 of DISTRICT COURT, KASARAGOD OS.157/2003 of PRL.MUNSIFF, KASARAGOD (IA.1448/2007) .................... REVN. PETITIONER(S): (APPELLANT IN CMA 16/2008 AND PETITIONER) ------------------------------------------------------------------------------------------------------- T.PRABHAKARAN, S/O.BELLACHI, RESIDING AT SRINIVASA REDDY BUILDING, JANATHA COLONY, SARJAPURA ROAD, DODDAKANNA HALLI, NEAR GEAR SCHOOL, CARMALARAM POST, BANGALORE-35. BY ADV. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT(S): (RESPONDENT IN CMA& RESPONDENT IN THE TRIAL COURT) -------------------------------------------------------------------------------------------------------------------- T.KANNAN, (DEAF), S/O.LATE APPA, RESIDING AT KUMBACHIMOOLA, BANDADKA POST,REP.BY NEXT FRIEND GUARDIAN SMT.CHOYICHI, DAUGHTER OF LATE APPA, RESIDING AT KUMBACHIMOOLA, BANDADKA POST, KASARAGOD, PIN 671 541. BY ADV. SRI.SURESH KUMAR KODOTH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.165 of 2011 --------------------------------------- Dated this 20th day of July, 2011 ORDER Respondent, uncle of mother of the petitioner allegedly executed assignment deed No.3143 of 1986 of S.R.O, Udma in favour of petitioner. Later, on April 08, 2003 respondent filed O.S.No.157 of 2003 in the Court of learned Munsiff, Kasaragod to set aside that document on the ground that respondent is a deaf person and that the document was got executed by fraud. Petitioner is said to have been served in the suit by substitute service under Rule 20 of Order V of the Code of Civil Procedure (for short, "the Code”). Following that, he was set ex parte and that was followed by an ex parte decre on June 31, 2003. On August 22, 2007 petitioner filed I.A.Nos.1447 and 1448 of 2007 to set aside the ex parte decree and to condone the delay of 1480 days in filing the application. Those applications were opposed by the respondent contending that petitioner was duly served by substituted service. Partied led evidence on their respective contentions. Learned Munsiff found that petitioner was served, the delay has not been properly explained and dismissed I.A.Nos.1447 and 1448 of 2007. Petitioner carried the matter in C.R.P.No.165 of 2011 -: 2 :- appeal in C.M.A.No.16 OF 2008. Learned District Judge refused to interfere with the order of learned Munsiff. Judgment of learned District Judge confirming the order of learned Munsiff is under challenge in this civil revision. 2. Learned Senior Advocate appearing for petitioner had contended that the courts below have not appreciated the broad aspects of the matter, not to say about lack of proper appreciation of the evidence. It is pointed out that petitioner did not stand to gain by remaining ex parte if he had information about pendancy of the suit since in the suit the challenge made by respondent was against validity of the assignment deed and the prayer was to set aside that document. It is also the contention of learned Senior Advocate that except in cases where there is contumacious negligence or gross latches proved on the part of the party concerned, the brooding principle of natural justice must inspire the Courts to give the litigants an opportunity to contest the case and get a decision on merit. Reliance is placed on the decisions in Sreedhara Kurup Vs. Mickel (1968 KLT 599) and Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors. (AIR 1987 SC 1353). In the latter decision, the Supreme Court dealt with what should be the parameters to decide whether there is sufficient cause and alerted that Courts are not respected for its power to C.R.P.No.165 of 2011 -: 3 :- legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Learned counsel for respondent has contended that there was gross negligence or latches on the part of petitioner as is clear from the materials produced by the respondent. It is pointed out that evidence would show that at the time of institution of the suit and when the summons was attempted to be served, petitioner was very much available in his native place in the address shown in the plaint. In Sreedhara Kurup Vs. Mickel (supra) learned Judge of this Court pointed out that the touch stone in a case under Order IX Rule 9 of the Code of Civil Procedure (for short, "the Code”) (similar should be position with respect to an application under Rule 13 of Order IX of the Code) is the presence of sufficient cause for non appearance when the suit was called on for hearing and if there is no sufficient cause, the Court cannot restore the suit as a matter of grace. On the other hand, it has always to be remembered the broad principle of natural justice that informs the judicial institutions that a litigant should be not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is largely a matter of wide discretion to be exercised by the court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence C.R.P.No.165 of 2011 -: 4 :- or gross carelessness and some steps have been taken and application for restoration (in the reported case) has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration (in the reported case) should be ordered. Minor misconduct or latches must be corrected by the common curative of costs. 3. Now I shall refer to the materials that the parties are produced in respect of their contentions. According to the petitioner, during the relevant time the suit was instituted, summons was attempted to be served and at any rate by substitute service under Order V Rule 20 of the Code he was staying in Bangalore in connection with his employment there. Petitioner gave evidence as PW1 and produced Exts.A1 to A6. Ext.A2 is the letter dated December 10, 2007 issued by one Kesava Murthy certifying that petitioner was employed with him at Bangalore since January 10, 1999. Ext.A3 is a certificate issued by the school authorities on January 02, 2008 certifying that son of petitioner was a student of that school during 2001- 2002. Ext.A3 is a similar certificate issued by the Principal of Anand Shiksha Kendra, Bangalore. Ext.A4 is the original of O.P.No.7260 of 2003 filed by the respondent in this Court (the details of which it will be referred to a bit later). Ext.A5 is the certified copy of the petition filed by the respondent before the C.R.P.No.165 of 2011 -: 5 :- Land Tribunal executed n S.M.No.1562 of 1973. Ext.A6 is the counter filed by the respondent in the Land Tribunal executed in the said proceeding. 4. Contra evidence is given by the respondent through, RW1, postman who is said to have served a registered postal article to the petitioner on March 12, 2003 as attempted to be evidenced by Ext.B1, postal acknowledgment card. RW1, postman stated that he had served the postal article in the address mentioned in Ext.B4 and that the acknowledgment was signed by the petitioner. Ext.B1 is an application filed by the petitioner in S.M.No.1562 of 1973 referred to above where, address of petitioner is the same as in the plaint. Ext.B2 is a copy of the judgment dated November 14, 2006 in O.P.No.7260 of 2003, judgment of this Court where also the address of petitioner is given as in the plaint and he was represented by one Adv.Krishna Prasad. Ext.B3 is the affidavit filed by the petitioner on May 06, 2003 in O.P.No.7260 of 2003. Ext.B5 is the ration card of petitioner showing his address as given in the plaint itself. Ext.B6 is copy of the said order in O.P.No.7260 of 2003. 5. It is relevant to note from the plaint that residential address of petitioner is given there as the “last known address”. This according to learned Senior Advocate would indicate that even according to the respondent, residential address given in C.R.P.No.165 of 2011 -: 6 :- the plaint was “last” known address of petitioner indicating that respondent was not sure about whereabouts of petitioner at the time of filing the suit. It is also pointed out by learned counsel that in the S.M proceeding petitioner had filed an application (I.A.No.12 of 2003) for correction of the proceeding in S.M.No.1562 of 1973 where respondent filed Ext.A6, counter opposing the said application. In Ext.A6, it is stated by the respondent that petitioner had left the place (meaning thereby, his native place) sometime in the year 1986. Learned Senior Advocate requested that the above statement has to be read along with the description of the “last known address of petitioner” in the plaint and that indicated that even at the time of institution of the suit, petitioner was staying at Bangalore to the knowledge of the respondent though, respondent may not have been aware of the address of the petitioner at Bangalore. 6. Learned counsel or respondent has pointed out that O.P.No.7260 of 2003 filed by the respondent was disposed of by this Court on 14.11.2006 when it was pointed out that civil suit (present suit) was decreed and atleast from that day onwards, petitioner must be deemed to have had knowledge of the decree. According to the learned counsel, if petitioner made no enquiry about the decree in the suit which respondent submitted before this Court on 14.11.2006 it is dereliction of duty on the part of C.R.P.No.165 of 2011 -: 7 :- respondent. In response, it is contended by learned Senior Advocate that going by the explanation to Article 123 of the Limitation Act, in computing the period of limitation service of notice by substitute service under Order V Rule 20 of the Code is not to be reckoned. It is also contended by learned Senior Advocate that though it was represented before this court while O.P.No.7260 of 2003 was disposed of on November 14, 2006 that suit has been decreed, respondent did not mention the details of the suit or even the case number, not to say about the Court which granted the decree and in the circumstances, petitioner cannot be expected to go around enquiring about the suit of which he had not been served with any summons. It is also pointed out by learned Senior Advocate that the writ appeal arising out of O.P.No.7260 of 2003 was disposed of by this court on 24.07.2007 and it is only then that the respondent revealed the case number and the Court which decided the suit. It is thus on 24.07.2007 that petitioner got information about the case number and other details and on 22.08.2007 petitioner has filed I.A.Nos.1447 and 1448 of 2007. It is contended that these aspects of the matter has not been taken into account by the courts below. 7. A further contention that the learned Senior Advocate has raised which in my view requires consideration is that even if C.R.P.No.165 of 2011 -: 8 :- it is assumed that petitioner had signed Ext.B4, acknowledgment that would only mean that when that notice was served, petitioner was available at his native place, but that does not mean that he was residing at native place. It is also pointed out that Ext.B4 is dated March 12, 2003 but bthe suit was filed only on April 08, 2003 and having regard to the contentions that the respondent has raised in Ext.A6, counter he filed S.M.No.1562 of 1973, it is possible that during the time the suit was filed, petitioner was staying at Bangalore though, his permanent residence continued to be in the address given in the plaint. Learned Senior Advocate also pointed out that it was a fact that there was no direct service on petitioner. 8. No doubt, the Supreme Court in Sunil Vs. Poddar Vs. Union Bank of India (2008(2) KLT SN.15 (Case No.16) SC) has stated that whether or not the defendant had served with the summons, if he has knowledge about the pendancy of the suit he cannot be allowed to contend in a proceeding under Order IX, Rule 13 of the Code that he did not get summons and hence the ex parte decree is liable to be set aside. There, it was found that the defendant had knowledge about pendancy of the suit. Here, the question arise whether at any time, even if it is so admitted, whether before November 14, 2006 petitioner had knowledge about the pendancy of the suit. Assuming so, period of limitation C.R.P.No.165 of 2011 -: 9 :- should run only from November 14, 2006 and not from the date of the substitute service or the decree as the case may be. Having heard learned counsel on both sides and gone through the order/judgment of the courts below, I am inclined to think that these aspects of the matter has not been looked into by the courts below. 9. Since this Court is now exercising revisional jurisdiction, I do not consider it appropriate that this Court should appreciate the evidence and come to a conclusion one way or the other in the matter. The proper course is to send the matter back to the Court of learned District Judge for fresh consideration having regard to all relevant aspects of the matter and decide the issue after proper appreciation of evidence and the contentions raised by the parties based on the decisions which I have referred to above. Resultantly this civil revision is allowed by way of remand. The judgment dated December 08, 2010 of the Court of learned District Judge, Kasaragod in C.M.A.No.16 of 2008 is set aside and that C.M appeal is remitted to the court of learned District Judge for fresh decision having regard to the binding decisions which I have referred to above and after a proper appreciation of the contentions raised by the parties in the light of the evidence on record. I make it clear that I have not expressed any opinion C.R.P.No.165 of 2011 -: 10 :- either way on the question whether request of petitioner to condone the delay and set aside the ex parte decree is to be allowed, or not. Learned District Judge is directed to expedite disposal of the C.M appeal having regard to the fact that the decree sought to be set aside is dated January 31, 2003. Parties shall appear before learned District Judge on 10.08.2011. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-