IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 SA.No. 736 of 1997(D) --------------------- AS NO.115/1996 OF DISTRICT COURT, THRISSUR. O.S.O.414/1990 OF MUNSIFF COURT, CHAVAKKAD APPELLANT(S)/APPELLANT/SECOND DEFENDANT: -------------- SOMAVATHY, D/O.THAZHATHPURAKKAL SREEDHARAN, CHITTANJOOR DESOM, ARTHAT VILLAGE AND POST 680 521. BY ADV. SRI.A.K.CHINNAN RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND FIRST DEFENDANT AND LRS OF THIRD DEFENDANT: --------------- 1. KAMALAKSHI AMMA, D/O.PULIYATH KUNHIKAVAMMA, CHITTANJOOR DESOM, ARTHAT PIN - 680 521. 2. AYYAPPU S/O.PANDIRIKKAL VELANDI, -DO- -DO- 3. THAVUTTY, S/O.KOLADI ITTIMATHEW, -DO- -DO- 4. PAPPACHAN, S/O.KOLADI ITTIMATHEW, -DO- -DO- R1 & R2 BY ADV. SRI.N.P.SAMUEL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.736 of 1997 -------------------------------------- Dated this the 20th day of February, 2009. JUDGMENT Though in the appeal memorandum there is a challenge to the judgment and decree of the learned munsiff on its merit and certain substantial questions of law relating to that are attempted to be raised, in the light of what the appellant submitted before the learned District Judge when the appeal and the application for condonation of delay (I.A.No.720 of 1996 in A.S.No.115 of 1996) were taken up for hearing the only substantial question of law arising for a decision in this appeal is whether the appellant could urge in the first appellate court for the first time in an appeal from the judgment and ex parte decree, such grounds which he could have urged in an application in the trial court under Order IX Rule 13 of the Code of Civil Procedure (for short “the Code”). 2. RespondentNo.1/plaintiff sought fixation of the boundary of the suit property. Appellant and respondent No.3 (defendant Nos.2 and 3) allegedly remained ex parte in the trial court. Respondent No.2 (defendant No.1) contested the suit. The advocate commissioner inspected the property and submitted report and plan. When the case came up for trial in the list, respondent No.2 (defendant No.1) and counsel remained absent. Respondent No.2 was set ex parte. Respondent No.1 (plaintiff) gave evidence as PW1. Learned Munsiff marked Exts.A1 and C1 to C4, found that the case of SA No.736/1997 2 respondent No.1 is proved by that evidence and granted decree in her favour. Appellant (defendant No.2) took up the matter in appeal before the learned District Judge. As the appeal was filed after about 446 days of the prescribed time, appellant filed I.A.No.720 of 1996 to condone that delay. When that application came up for hearing before the learned District Judge, the counsel for appellant submitted that the only ground of challenge was that the appellant was not duly served in the trial court. The learned District Judge observed that the said contention has to be urged in an application under Order IX Rule 13 of the Code, found no substance in the reasons urged for condonation of 446 days delay, dismissed the application and consequently the appeal as well. Hence this Second Appeal. 3. Though as aforesaid several grounds are seen taken up in the memorandum of first appeal as well as Second Appeal on the merit of the case, in the light of what was submitted before the learned District Judge and stated above, the only substantial question of law arising for a decision is whether the appellant could urge in the appeal against the judgment and decree that he was not served with summons in the suit. 4. Since it was asserted that appellant was not served, I called for information from the trial court. It is reported that appellant (defendant No.2) was served with summons in the suit through process server on 22.10.1990 and by post with acknowledgment due on 29.10.1990. Then the next question is whether it was open to the appellant to urge before the first appellate court that SA No.736/1997 3 she was not duly served. The question whether the appellant was duly served inspite of the endorsement of the process server and the acknowledgment card showing service through post, is a matter which required evidence. That is not a matter which could be urged for the first time before the appellate court, for, there is no scope for conducting enquiry into that disputed question in the appellate court for the first time. That is an exercise which has to be done in the trial court obviously if an application under Order IX Rule 13 of the Code is preferred. In Bava alias Asees v. Madhavan and others (1995(2) KLJ 706) a learned Single Judge of this Court and later a Division Bench of this Court in P.N.Abdul Azeez v. Shareefa Beevi (1996(2) KLJ 630) took the view that in appeal against the ex parte order or decree as the case may be, appellant can succeed only on merits and not for the reason that he was denied an opportunity to contest the petition. He cannot urge any of the grounds he could raise in an application under Order IX Rule 13 of the Code and request for a remand of the case for re-hearing. 5. The Supreme Court in Lal Devi and another v. Vaneeta Jain and others [(2007) 7 SCC 200] however, on the facts of that case directed the High Court to consider the appeal when the challenge was to an ex parte decree passed by the learned District Judge on the original side. That case can be distinguished on the facts where the admitted fact was that when the case was taken up for enquiry, learned counsel for respondent remained absent and later, he filed an application to reopen the case stating reasons which was SA No.736/1997 4 disallowed. There, on the admitted facts the question to be considered by the appellate court was only whether the reason stated in the application to reopen the case was sufficient. No detailed enquiry as is required when the service of summons is denied was involved. In the light of the decisions of this Court referred supra, learned District Judge is correct in holding that non-service of summons is not a matter which the appellant could urge in an appeal challenging the judgment and decree. In view of that and since no sufficient and justifiable reason is shown for the condonation of delay of 446 days, I find no reason to interfere with the order of the learned District Judge dismissing the application (I.A.No.720 of 1996) to condone the delay and the consequent dismissal of the appeal. No other point is raised for consideration. Appeal fails. It is dismissed. Parties are directed to bear their respective costs. THOMAS P.JOSEPH, Judge. cks SA No.736/1997 5 Thomas P.Joseph, J. S.A.No.736 of 1997 JUDGMENT 20th February, 2009.