IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 CRP.No. 124 of 2008 --------------------------- AGAINST THE ORDER DATED 03/12/2007 IN IA 1682/07 IN OS.1898/1998 OF I ADDL. MUNSIFF COURT, ERNAKULAM .................................... REVN. PETITIONER: 1ST RESPONDENT: -------------------------------------------------------- M/S.COCHIN STOCK EXCHANGE LTD., M.S.S.BUILDING, 4TH FLOOR, KALOOR, COCHIN -17, REPRESENTED BY ITS EXECUTIVE DIRECTOR (ACTING) BY ADV. SRI.KOSHY GEORGE RESPONDENTS: PETITIONERS/RESPONDENT NO. 2 TO 4: ---------------------------------------------------------------------------------- 1. ANIL H.SANGHAVI, S/O.M.D.SANGHAVI, AGED 44, ANAND PALACE, FLAT NO.205, 10/499 ALAN GANJ, KANPUR-208 002. 2. MISS CHARU, D/O.A.K.KATYAL, RESIDING AT RADHEY APARTMENT, 7/116-A, SWAROOP NAGAR, KANPUR. 3. NIMISH.H.SANGHAVI, S/O.H.D.SANGHAVI, RESIDING AT 7/192-C, SWAROOP NAGAR, NEAR GASTRO LEVER HOSPITAL, KANPUR-02. 4. ANJU.R.VORA, W/O.RAJESH VORA, 22/KESAV KUNJ, KCHANDU BHAL DESAI ROAD, VILO PARLE (W), MUMBAI-56. 5. M/S.RELIANCE CAPITAL LIMITED, A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, HAVING ITS REGISTERED OFFICE AVDES HOUSE, I SLOPE, PREETHAM NAGAR, ELLIS BRIDGE AHMEDABAD 30006, REPRESENTED BY ITS SECRETARY. C.R.P NO. 124/2008 6. M/S.SPECTRUM CORPORATE SERVICE LTD., A COMPANY INCORPORATED UNDER THE INDIAN CAMPANIES ACT, HAVING ITS REGISTERED OFFICE AS SRIGANESH, INDUSTRIAL HOUSE, IST FLOOR, NEAR AMAR CINEMA, W.T.PATAL MARGE, CHEMBUR, MUMBAI-400 071. 7. MRS.SREEJA RAMESH, W/O.RAMESH, M/S.AKSHAY INVESTMENTS, MARVEL MANSION, APARTMENT NO.10, KATHRIKADAVU ROAD, KALOOR, KOCHI-17. BY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/02/2008 ALONG WITH C.R.P NO. 133/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- C.R.P.Nos.124 &133 OF 2008 -------------------------- Dated this the 14th day of February, 2008 O R D E R ~~~~~~~ C.R.P.No.124/2008 is preferred against the order of the 1st Additional Munsiff, Ernakulam in I.A.No.1682/2007 and C.R.P.No.133/2008 is preferred against the order of the same Munsiff in I.A.No.1658/2007. These two applications were filed for setting aside the ex parte decree as well as to condone the delay in filing the application. The learned counsel for the revision petitioner would submit before me that the court was not right in condoning the delay and setting aside the ex parte decree and giving an opportunity to the defendants to contest the case on merits. The court below found that there was an order for publication as the defendants were residing in Kanpur to make the paper publication in Kanpur edition. The court held that “perusal of the paper publication shows that it was in fact effected at Kochi edition and not in Kanpur edition. So it cannot be said there is proper service”. 2. It is a well settled principal that in litigation as far as possible the parties are to be served personally so as to make C.R.P.Nos.124 & 133/2008 2 their defence. When such service is not possible it is the ruleS provide for substituted services either by affixture or by publication. The intention behind the said rules are to see that this publication reaches the person where he is residing so that he can come and resist the case. These rules are framed with the object that principles of natural justice requires fair hearing and for the said purpose parties must be given opportunity and therefore notice should be given. When the matter is analysed in this back drop, one cannot hold that an empty compliance of the formality is not sufficient in the case. When the court below recorded that the publication was done only in Cochin edition whereas the defendants were residing in Kanpur that itself is evident to establish that proper and effective service has not been done. When it is so, the question of limitation also does not arise for the reason they can be affixed with the knowledge not on the date of the decree but only on a subsequent occasion. So I feel this is a case where the court had approached the matter in the correct perspective and further it has also to be held that in the light of the decision in Sreedhara Kurup v. Mickel reported in 1968 KLT 599 the broad principles of natural justice always commands that an opportunity has to be given for C.R.P.Nos.124 & 133/2008 3 hearing unless there is gross negligence or grave misconduct on the part of the parties. Here when the notice is not properly published or effectively affixed, one cannot hold there is negligence or grave misconduct. So applying all these principles the court below has used its discretionary jurisdiction to give an opportunity for the parties to contest the case on merits. It is correct. Therefore, I do not find any ground to interfere with the decision and the civil revision petitions are dismissed. (M.N.KRISHNAN, JUDGE) ps