Allowed

Sri R Ravichandar v. Sri N Mubeen

Karnataka HC8 Dec 2022MFA/5302/2017

Case brief

AI extract

What is this about?

An ex parte specific-performance decree was challenged for defective service of summons. The Court allowed the appeal, set aside the rejection of the setting-aside petition and the decree, and directed the trial court to permit a written statement and decide the suit expeditiously.

What did the court decide?

Rejection order and ex parte decree set aside; setting-aside petition allowed; trial court directed to permit defendant no.2's written statement and proceed with the suit.

Sri R Ravichandar Vs Sri N Mubeen — Specific Performance | Karnataka HC (2022)

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MFA No. 5302 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF DECEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 5302 OF 2017 (CPC)

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BETWEEN:

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SRI. R.RAVICHANDAR, FORMERLY R.RAVICHANDRAN, AGED ABOUT 53 YEARS, S/O LATE Y.A.RAMASWAMYRAJU, R/A NO.73, 11^TH MAIN, 15^TH CROSS, 6^TH SECTOR, H.S.R. LAYOUT, BANGALORE-560 102.

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…APPELLANT

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[BY SRI. RAJESWARA P.N., ADVOCATE (PH)]

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AND:

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1 . SRI. N.MUBEEN, S/O NAWABJAN SAHEB, AGED ABOUT 50 YEARS, R/A NO.26, 9TH MAIN, BTM LAYOUT,

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BANGALORE-560 029.

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Digitally signed by GURURAJ D Location: High Court Of Karnataka

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SRI. MUNINAGAPPA, AGED ABOUT 51 YEARS, S/O LATE MUNISHAMAPPA, R/A BEGUR VILLAGE, SULIBELE POST, HOSKOTE TALUK, BEGUR POST-562 129, BANGALORE RURAL DISTRICT.

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…RESPONDENTS

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[BY SRI. H.KANTHARAJ, SR. COUNSEL FOR SRI. B.R.VISHWANATH, ADVOCATE FOR R1 (PH) NOTICE TO R2 IS DISPENSED WITH V/O DATED 04.11.2022]

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THIS M.F.A IS FILED UNDER ORDER 43 RULE 1(d) CPC., AGAINST THE ORDER DATED 24.06.2017 PASSED IN MISC.

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MFA No. 5302 of 2017

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NO.2/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE PETITION FILED U/O 9 RULE 13 OF CPC.,

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging order dated 24.06.2017 passed by Prl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, in Misc. petition no.2/2013 was filed under Order IX Rule 13 of Code of Civil Procedure, 1908 (for short 'CPC), this appeal is filed.

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Appellant herein was petitioner, while respondents herein were respondents in petition filed under Order IX Rule 13 of CPC for setting aside ex-parte judgment and decree dated 03.02.2012 passed in O.S.no.967/2010.

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In petition, it was stated that O.S.no.967/2010 was filed by respondent no.1 (plaintiff) against respondent no.2 (defendant no.1) and petitioner (defendant no.2) alleging that respondent no.2 had executed agreement of sale dated 12.12.2005 in favour of respondent no.1 agreeing to sell land bearing Sy.no.31/1B measuring 1 Acre 32 guntas of Begur village, Sulibele Hobli, for total sale consideration of Rs.7,76,000/- after receiving advance amount of Rs.4,00,000/-

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MFA No. 5302 of 2017

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. But respondent no.2 executed sale deed in favour of petitioner herein behind back of respondent no.1. Therefore, suit was filed not only for specific performance of contract, but also for declaration of sale deed executed by respondent no.1 in favour of petitioner as not binding on plaintiff and for other reliefs.

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It was alleged that petitioner being a bonafide purchaser, was not aware of earlier agreement of sale. It was stated that suit summons was not served upon petitioner, but stated to have been effected by way of paper publication was illegal. It was further stated that before considering application under Order V Rule 20 of CPC, trial Court has to verify contents of affidavit and only after coming to conclusion that defendants/appellants were trying to evade service of summons, then court has to permit to take notice of notice through paper publication wide circulation on last known address of defendant.

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It was stated that petitioner had left address mentioned in suit prior to institution of suit and plaintiff had failed to take steps after postal shara as 'addressee left'. It was also alleged that 'Samyukta Karnataka' News paper in which

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MFA No. 5302 of 2017

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substituted service was taken, not widely circulated in locality, where petitioner was residing. It was further stated that petitioner came to know about ex-parte decree, when respondent no.1 spread rumor in locality where their land was situated that, he had got decree and would get sale deed registered.

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Upon service of notice in petition, respondent no.1 entered appearance and filed objection stating that petition was barred by limitation. It was further asserted that petitioner was aware of entire proceedings and was watching same from outside. It was asserted that petitioner had sold suit property to one Sri. B.K.Srinivas under registered sale deed dated 02.07.2012 in which petitioner had mentioned address as in O.S.No.967/2010 and Execution Case no.110/2012. It was also specifically asserted that petitioner was believed to be residing in same address and managed to send back notice issued by Court. It was further stated that O.S.no.967/2010 was represented suit after order passed in O.S.no.67/2008 before Addl. Civil Judge & JMFC., Hoskote, wherein petitioner had entered appearance through counsel till order of rejection of plaint. Therefore, it was stated that petitioner was all through

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MFA No. 5302 of 2017

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watching proceedings and decree, therefore, approached Court to cause delay for unlawful gain. Suppression of material facts was also alleged. Respondent no.2 did not file objections.

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On above pleadings, trial Court framed following

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points for consideration:

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1. Whether the petition filed by the petitioner u/o 9 rule 13 of C.P.C. deserves to be allowed?

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2. What order?

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Thereafter petitioner examined himself as PW.1 and

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got marked Exhibits P.1 to P.11. He also examined one independent witness as P.W.2. Respondent no.1 got examined

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himself as RW.1 and Exhibits R.1 to 7 were marked. Respondent no.2 got himself examined as RW.2 and no documents were marked.

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On consideration, trial Court answered point no.1 in negative and point no.2 by dismissing petition. Assailing same petitioner is in appeal.

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Sri. P. N. Rajeshwar, learned counsel for petitioner submitted that in O.S.no.67/2008 filed before Hoskote Court, petitioner was defendant no.2 and respondent no.2 herein was

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defendant no.1. Both had filed written statements denying agreement of sale and alleging that it was created subsequent to sale deed in favour of petitioner. Plaint was returned vide order dated 13.09.2010 by allowing application filed under Order VII rule 10 of CPC for re-presenting before appropriate Court. However, no specific date or Court, to which it has to be re-presented was mentioned. Thereafter on re-presentation, it was re-numbered as O.S.no.967/2010. On 14.12.2010 summons were issued to defendant no.2 by process server returned with shara as 'no such person'. On 19.07.2011 notice sent by RPAD returned with shara as 'unserved' and 'left'. Thereafter on 05.09.2011, trial Court recorded prayer for service of summons by way of paper publication was accepted and notice was served through paper publication.

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On 16.09.2011 summons was published in 'Samuyukta Karnataka' Newspaper. Thereafter trial Court recorded service of notice to defendant no.2 - petitioner as sufficient On 20.10.2011 and placed him ex-parte . Suit came to be decreed on 03.12.2012. It was submitted that even defendant no.1 did not contest suit and was placed ex-parte .

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Learned counsel submitted that as per Article 123 of Limitation Act while prescribing period of limitation for setting aside ex-parte decree indicated, service of summons as one of ground for which ex-parte decree could be set aside. It was further submitted that Order IX Rule 13 of CPC provided for setting aside ex-parte decree on defendant satisfying Court that summons was not duly served or he was prevented from appearing when suit was posted for hearing. It was submitted that Hon'ble Supreme Court in Neerja Realtors Private

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Limited Vs. Janglu (Dead) Through Legal Representative¹ , (Three Judges Bench), where Court bailiff reporting that when he went to serve summons on defendant, he was informed by persons residing in village that 'he had left premises, two years earlier and residing elsewhere'. Thereafter, trial Court had allowed application filed under Order V Rule 20 of CPC for service of summons through paper publication. Said reason seems to be sufficient cause for setting aside ex-parte decree.

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It was further submitted that order dated 05.09.2011 passed by trial Court was also cryptic order which did not

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1 (2018) 2 SCC 49

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record any satisfied reason that defendants evading service and about assertion of plaintiff with regard to effect of service through process server and therefore said order would be erroneous. Further paper publication could be resorted to only after exhausting all modes of service enumerated including one under Order V Rule 17 CPC would render service of summons to petitioner as erroneous and would vitiate entire case.

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On other hand, Sri. Kantaraj, learned Senior counsel appearing for respondent no.1 submitted at outset, that petition filed by petitioner was not bonafide and liable to be dismissed on ground of suppression of material facts. It was stated that there were inconsistent stand taken by petitioner about his place of residence. It was submitted that while summons was served on petitioner at address mentioned in O.S.No.67/2008 and he had entered appearance. In his presence, plaint was returned for re-presentation to proper Court. Therefore, plaintiff was aware of suit being filed by respondent no.1. Further even in O.S.no.967/2010 after its representation, notice was issued to petitioner on address mentioned in cause title. Shara of process server on summons issued on 14.12.2010 as 'no such person found at the address'.

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However, in sale deed executed after passing of ex-parte decree on 02.07.2012, petitioner had stated very same address as mentioned in cause title of O.S.no.967/2010. Though in Mis.Petition, petitioner has stated that he had changed place of residence by end of 2006 in his written statement in O.S.no.67/2008, which was subsequent to alleged change of residence, he had not stated about same. Therefore, it was evidence of petitioner that though aware of proceedings and receiving service while keeping watch on entire proceedings, as contended by petitioner, he was not residing at address, then resorting to or compliance with Rule 17 of Order V of CPC would be empty formality.

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It was further submitted that in Misc. petition though petitioner had vaguely pleaded that he came to know about exparte decree from rumors spread by respondent no.1 without specifically disclosing date and person from it came to his knowledge.

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Relying upon decision of Hon'ble Supreme Court in case of Smt. Indira Kashyap Vs. K.N. Kashyap² , it was

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2 AIR 1984 SC 1045

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submitted that Hon'ble Supreme Court under similar circumstances where petitioner, who had sought for setting aside ex-parte decree had pleaded that he had got knowledge from whom informant, failed to examine such informant, adverse inference drawn was upheld. Therefore, it was submitted that in instant case, since petitioner did not assert about person, who had informed him or examined any other independent witnesses than himself, adverse inference ought to be drawn in which case dismissal of Misc. Petition would be justified.

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Learned counsel further submitted during his examination-in-chief, petitioner had specifically stated that change of address was informed to postal authorities, but, had failed to examine any witnesses or produced any evidence to that effect. Therefore, it was contended that said assertion was false and sought for drawing adverse inference.

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Attention was also drawn to his admission that there was no official seal on Exs.P6 and P7 to contend that conduct of petitioner was not above board, as he has relied upon unofficial documents.

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MFA No. 5302 of 2017

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Further relying upon decision of Hon'ble Supreme Court in case of Parimal Vs. Veena,³ it was held that any appeal against order passed under Order IX Rule 13 of CPC, jurisdiction of High Court was extremely limited and burden to show that case fell squarely within scope of Order IX Rule 13 of CPC would be on petitioner.

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Referring to decision of Hon'ble Supreme Court in case of Basant Singh and Anr. Vs. Roman Catholic Mission⁴ , it was submitted that proviso to Order IX Rule 13 of CPC cast embargo on Court that a decree passed ex-parte shall not be set aside merely on ground that there has been irregularity in service of summons.

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Learned Senior counsel further submitted that Division Bench of this Court in MFA no.7043/2013 , disposed

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of on 22.06.2022 in Smt. P.V. Prema Vs. Sri T.K. Manjunath, had referred to decision of Hon'ble Supreme Court in Neerja Realtors (P). Ltd . (supra), held that where process serving officer did not entertain doubt about likelihood of respondent being found in residence within reasonable time,

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3 AIR 2011 SC 1150

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4 AIR 2002 SC 3557

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there would be no requirement to comply with provisions for affixture as enumerated under Order V Rule 17 of CPC.

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Learned Senior counsel strenuously submitted that in view of sub-rule 1(A) of Rule 20 of Order V of CPC resort to service of summons through paper publication even without following Rule 17 would be justified.

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It was further submitted that since trial Court by appreciating above facts in proper perspective and taking note of conduct of petitioner, dismissed petition, respondent no.1 had every right under decree passed on 03.02.2012. Therefore same should not be interfered with at this length of time. On said submissions sought for dismissal of appeal.

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Heard learned counsel, perused impugned order and also records.

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From above submission, it is not in dispute that originally O.S.no.67/2008 was filed by plaintiff on 01.03.2008, praying for decree of specific performance of agreement of sale dated 12.12.2005, alleged to have been executed by defendant no.1 in favour of plaintiff, agreeing to sell extent of land

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MFA No. 5302 of 2017

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measuring 01 acre 32 guntas, bearing Sy.no.31/1B situated at Begur Village, Sulebele Hobli, Hoskote Taluk for total sale consideration of Rs.13,96,800/- after receiving Rs.4,00,000/as advance amount.

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It is also not in dispute that in said suit, defendants no.1 and 2 entered appearance and filed separate written statements denying agreement of sale. It was also contended that agreement was got created subsequent to sale deed in favour of defendant no.2 by ante-dating it. On 13.09.2010, plaint was returned under Order VII Rule 10 of CPC for representation before proper Court, without fixing date and Court. Thereafter, plaint was re-presented and registered as O.S.no.967/2010.

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While petitioner contends that after re-presentation plaint, petitioner/defendant no.2 was not served with summons and ex-parte decree came to be passed by trial Court on 03.01.2012, which was in violation of principles of natural justice and contrary to procedure stipulated in CPC. Therefore petitioner was entitled to seek for setting aside ex-parte decree under Order IX Rule 13 of CPC and rejection of said Misc.

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petition was illegal by relying upon decision of three Judges Bench of Hon'ble Supreme Court in Neerja Realtors (P) Ltd. case (supra).

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Respondent no.1 - plaintiff contends that petitioner was served with suit summons in O.S.no.67/2008, wherein he had entered appearance and filed written statement. Even after re-presentation, in O.S.no.967/2010, summons was issued to be same address as in cause title of O.S.no.67/2008. Even notice by RPAD was issued to same address. Though service by said mode was not successful, service of summons by way of paper publication effected in terms of Court order would be deemed to be personal service as provided in Order V Rule 20(2) of CPC. Only ground on which petitioner sought for setting aside of ex-parte decree in Misc. Petition no.2/2013 was that petitioner had shifted out of address mentioned in O.S.no.967/2010, in year 2006 and there was no proper service of suit summons. But, fact that petitioner had entered appearance on service of suit summons at same address in O.S.no.67/2008, not disclosed change of address while filing written statement. Even in sale deed dated 02.07.2012 under which petitioner purchased suit property, his address

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MFA No. 5302 of 2017

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mentioned was same, indicated that petitioner was evading service after knowing about proceedings, therefore not entitled for setting aside of ex-parte decree, by relying upon decisions

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of Apex Court in Parimal, Basant Singh and Anr., Smt.Indira Kashyap and Division Bench decision of this Court

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in Smt.P.V.Prema's case.

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Therefore, only point that arises for consideration in

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this appeal is:

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"Whether trial Court was justified in dismissing petition filed by appellant under Order IX Rule 13 of CPC for setting aside ex-parte decree dated 03.01.2012 passed in O.S.no.967/2010?"

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In view of contentions urged, before embarking upon

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examination of above point, reference to relevant provisions would be useful.

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Order V Rule 17 (Karnataka Amendment) reads as follows:

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" 17. Procedure when defendant refuses to accept service, or cannot be found. —Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is not present at the house in which he ordinarily resides or carries on business or personally works for gain at the time service is sought to be effected on him thereat and there is no agent empowered to accept service of this summons on his

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behalf or nor any other person upon who service can be made under Rule 15, the serving officer shall affix a copy of this summons on the outer door of or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorse thereon or annexed thereto he has so affix the copy, the circumstances under which he did so, and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was so affixed."

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Order V Rule 20 reads as follows:

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" 20. Substituted service. — (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

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(1A)Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

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(2) Effect of substituted service.—Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

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(3) Where service substituted, time for appearance to be fixed.—Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."

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Order IX Rule 13 reads as under:

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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:

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[Karnataka Amendment]

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Provided further that no such decree shall be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant knew the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim.

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Provided further than no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

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Explanation.—Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the

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appeal, no application shall lie under this rule for setting aside that ex-parte decree."

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Main ground urged by petitioner is violation of mandatory provisions of Order V Rules 17 and 20 of CPC, by relying upon decision in Neerja Realtors (P) Ltd., case (supra). Facts in said case also involved petition for setting aside ex-parte decree on ground of violation of Order V Rules 17 and 20 of CPC. In suit for specific performance, summons issued on two occasions to original defendant therein were returned unserved. Bailiff submitted report stating that when he went to serve defendant, he was informed by person residing in village that defendant had left premises two years ago, residing elsewhere and returned summons. Thereafter, application for substituted service under Order V Rule 20(1-A) of CPC was filed before trial Court, which was allowed by nonspeaking order. Thereafter, defendant was placed ex-parte after notice was published in newspaper. His appeal against exparte decree was allowed by this Court on ground of failure to comply with mandatory provisions of Order V Rule 17 of CPC and also Order V Rule 20 of CPC. Hon'ble Supreme Court by

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examining provisions of Order V Rule 17 of CPC and also Order

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V Rule 20 of CPC held as follows:

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" 13. Order 5 Rule 17 provides as follows:

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17. Procedure when defendant refuses to accept service, or cannot be found .—Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”

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14. Evidently as the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order 5 Rule 17. When the application for substituted service was filed before the trial court under Order 5 Rule 20, a cryptic order was passed on 2-9-2011. Order 5 Rule 20 requires the

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court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the trial court failed to apply its mind to the requirements of Order 5 Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paras 33 to 36 of Chapter III are extracted below:

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“33. In addition to the service to be effected through a bailiff, a summon may also be sent to the defendant, to the address given by the plaintiff, by registered post, prepaid for acknowledgment, provided there is a regular daily postal service at such place.

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34. Rules as to service of summons are contained in Rules 9 to 30 of Order 5. Care should be taken to see that bailiffs follow those rules as well as the instructions given in the bailiffs' Manual.

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35. It is the duty of the serving officer to follow the procedure and take all the steps laid down in Rule 17 of Order 5. He has no discretion for not taking the necessary steps, when the conditions laid down in the said Rule are fulfilled.

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36. It is for the Court to determine whether the service is good or bad. In determining whether the service is good or not, the attention of courts is drawn to the necessity of strictly following the provisions of the Civil Procedure Code as to the service of processes. Ordinarily, service should not be considered sufficient unless all the requirements of the law in that behalf are fulfilled. The object of the service is to inform a party of the proceedings in due time. When from the return of a serving officer it appears that there is no likelihood that a process will come to the knowledge of the party in due time, or a probability exists that it will not so come to his knowledge, the service should not be considered to be proper. The law contemplates that the primary method of service should be tendering or delivering a copy of the process to the party personally, in case in which it may be practicable to do so. It is the duty of the serving officer to make all proper efforts to find the party, with a view to effect personal service. If it be not possible after reasonable endeavour to find the party, then only the service may be made on an adult male member of the family residing with him."

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15. The submission that under Order 5 Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order 5 Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the

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requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex parte judgment and order in the suit for specific performance was liable to be set aside."

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In Parimal's case, while examining scope of petition under Order IX Rule 13 of CPC, on ground of violation of Order V Rule 20 of CPC and jurisdiction of appellate Court, it was observed that in a petition for divorce filed by husband against wife, she had refused to receive notice sent by RPAD. Even later, when process server attempted service, she refused to accept after reading summons. Thereafter, she once again refused to accept notice from process server and subsequent notice issued by RPAD returned with postal shara as 'refused' and thereafter, she was served through newspaper. Her petition for setting aside ex-parte decree filed four years after passing of decree for divorce and two years after her husband had remarried was rejected by trial Court, but allowed in appeal by High Court. Hon'ble Supreme Court while explaining scope of ' sufficient cause' in Order IX Rule 13 of CPC held as follows:

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"13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient”

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embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, Lonand Grampanchayat v. Ramgiri Gosavi AIR 1968 SC 222, Surinder Singh Sibia v. Vijay Kumar Sood (1992) 1 SCC 70 and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn. (2010) 5 SCC 459.

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14. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also Brij Indar Singh v. Kanshi Ram AIR 1917 PC 156, Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] and Mata Din v. A. Narayanan (1969) 2 SCC 770.

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15. [Ed. : Para 15 corrected vide Official Corrigendum No. F.3/Ed.B.J./14/2011 dated 25-22011.] While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties

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concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Madanlal v. Shyamlal (2002) 1 SCC 535, Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. (2002) 3 SCC 156, Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195], Kaushalya Devi v. Prem Chand [(2005) 10 SCC 127], SREI International Finance Ltd. v. Fairgrowth Financial Services Ltd. [(2005) 13 SCC 95] and Reena Sadh v. Anjana Enterprises (2008) 12 SCC 589.

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16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.

¶158

Presumption of service by registered post and burden of proof

¶159

17. This Court after considering a large number of its earlier judgments in Greater Mohali Area Development Authority v. Manju Jain (2010) 9 SCC 157 held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the

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presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13 SCC 657.

¶163

18. In Gujarat Electricity Board v. Atmaram Sungomal Poshani [(1989) 2 SCC 602 : 1989 SCC (L&S) 393 : (1989) 10 ATC 396 : AIR 1989 SC 1433] this Court held as under : (SCC pp. 611-12, para 8)

¶164

“8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service.” (emphasis added)

¶165

19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section

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103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

¶169

It was observed that since notice issued by RPAD returned as 'refused', mere assertion by respondent wife that she was living at different address would not be sufficient. Fact that notice was also published in newspaper was taken into account. Dismissing wife's petition for setting aside ex-parte decree, it held that there was presumption about service of summons and unless presumption was rebutted, case would not fall within scope of sufficient cause under Order IX Rule 13 of CPC and interference by appellate Court was not justified.

¶170

Smt.Indira Kashyap's case also involved similar facts for setting aside of ex-parte decree of divorce. Facts therein reveal that both spouses appeared before divorce Court and proceeding was adjourned leaving a long gap for parties to improve their mutual relationship. Thereafter, wife did not appear and was placed ex-parte, leading to ex-parte decree. Her petition under Order IX Rule 13 of CPC filed belatedly was contested. Wife claimed that after her appearance before divorce Court, there was reconciliation. On consideration of evidence led to substantiate plea of reconciliation, trial Court

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dismissed petition by drawing adverse inference against wife for not examining her informer, which was confirmed by High Court. Hon'ble Supreme Court while confirming rejection of

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petition for setting aside ex-parte decree observed as follows:

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" 8. The courts below have rightly relied upon the documents in preference to oral evidence and their counsel had also suggested to us that the documents should be preferred to the oral evidence. It is on that basis that we had been requested to look into the documents before disposing of the application for special leave one way or the other.

¶176

9. Two further features in our opinion should be noticed to uphold the order of the High Court and dismiss the application for special leave. Firstly, the wife's father as also two of her brothers are advocates by profession. At one stage, the father was representing her in the proceeding. Keeping track of the proceeding in Court, therefore, was not at all difficult so far as the wife was concerned. Secondly, Amit who is doing intermediate law and the two daughters, one of whom has done her post-graduate course and the other is doing the same appeared before us and expressed natural indignation over the sufferings caused to their father and also to them by the mother. Since they are all grown up and capable of making reasonable assessment of events around them, they would have known about reconciliation if it had been effected. To affection hungry children restoration of relationship between the parents would have been an event of immense importance. They told us that there was no foundation for it in fact. One of the daughters when examined as a witness in the proceeding under Order 9 Rule 13, had deposed that way.

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10. After looking into the documents and on giving our anxious consideration to the materials placed in the records, we have no doubt that the courts below have taken the correct view both on the question of limitation as also on merit. We endorse their finding that there was no reasonable cause for excusing the delay in applying to the Court for vacation of the decree nor any reasonable cause on the part of the wife to be absent from the Court on May 18, 1978, to which date the divorce proceeding had been adjourned. We have already indicated that the parties and the offsprings of the wedlock had appeared before us. When we heard them in order to explore the possibility of reconciliation, we gathered the impression that neither the husband nor the children of the marriage had any room in their lives for the petitioner. Ordinarily there would be no scope to entertain a petition for special leave in a matter arising out of an application under Order 9 Rule 13 of the Code. But as this matter was argued at length, we had agreed to explore the possibility of reconciliation and the documents were looked into. We thought it proper to give brief reasons for rejection of the application.

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36. In Basant Singh's case, question for consideration

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before Hon'ble Supreme Court was whether service of notice sent by registered post with acknowledgment card in terms of second proviso to Order V Rule 19-A of CPC read with Section 27 of General Clauses Act, could be held as sufficient notice. Facts involved therein were suit filed by landlord was decreed ex-parte on 30.05.1986. Prior to same, on 02.04.1986, trial Court ordered summons by ordinary process and registered

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post. As acknowledgment was not received, fresh summons was ordered by ordinary post and registered post. Apart from same, trial Court ordered substituted service through paper publication in local daily "Dainik Bhaskar". But notice published in "Aacharan" daily newspaper, which was accepted and trial Court proceeded pass ex-parte decree . In petition for setting aside ex-parte decree, contention urged was without recording satisfied explanation about defendant avoiding service or inability to effect it in normal mode, application allowed, constituted sufficient cause for setting aside ex-parte decree. Trial Court rejected petition which was confirmed by High Court. While confirming said orders, Hon'ble Supreme Court observed as follows:

¶185

" 8. Second proviso to Order 9 Rule 13 casts an embargo on the court that a decree passed ex parte shall not be set aside merely on the ground that there has been an irregularity in the service of summons.

¶186

9. Order 5, proviso to sub-rule (2) of Rule 19-A CPC provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons, the court shall presume that notice is duly served. Further, Section 27 of the

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General Clauses Act, 1897 (in short “the Act”) provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence.

¶190

11. Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. Before the trial court, the appellants were allowed to lead evidence in support of their contentions. An order to this effect was passed by the trial court on 11-11991. The premises in question are occupied by two defendants jointly — Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not on Hari Singh when they occupied the tenanted premises jointly.”

¶191

In Smt.P.V.Prema's case also challenge to an ex-

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parte decree of divorce was under challenge. In petition before Family Court, notices were issued to respondent - wife thrice in

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addition to issuing notice through RPAD. All six notices returned unserved with endorsement that at time of service, respondent was not available at address. Thereafter, application under Order V Rule 20 of CPC was filed asserting that respondent was intentionally evading service of notice. Family Court allowed said application taking into consideration not only fact that six notices sent had returned unserved, but also fact that she was at same time pursuing another petition while living in same address. Even on date after publication of notice in newspaper, family Court granted further time for appearance and on failure, proceeded to place her ex-parte and allowed petition dissolving marriage.

¶196

In appeal, contention urged relying upon Neerja

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Realtors (P) Ltd .,( supra), was that upon finding respondent absent, process server ought to have affixed notice on conspicuous part of house and in breach of same, there was no due service of notice. Division Bench held as follows:

¶198

"21. However, in the present case these conditions are not fulfilled. Since the Serving Officer did not find the addressee i.e, respondent in the given address when he went to serve the same thrice, he has returned the notice. He did not entertain a doubt that there is no likelihood of respondent being found in the residence within a reasonable

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time. Therefore, he has returned the notice. As a precautionary measure, the Family Court has also sent the notice by RPAD which was also returned with endorsement that addressee was not available on all the seven dates on which the postman has gone to the address. These circumstances justify the Family Court in ordering for substituted service of notice through paper publication. In the facts and circumstances of the case, the above decision is not applicable to the case on hand.

¶202

22. In view of the preceding analysis, we hold that after providing sufficient opportunity to the respondent to hear and put forth her defence, when she has failed to avail the said opportunities and after realizing that respondent is not interested in defending the petition and she is intentionally evading the service, the Family Court has rightly placed her ex-parte and proceeded with the matter. In fact, after appreciating the entire oral and documentary evidence placed on record, the Family Court has rejected the petition filed under Section 13(1) and 13(1) (iii), but allowed the petition under Section 13(1)(i-a). Consequently, the respondent has failed to 22 demonstrate that she had any justifiable reasons in not appearing before the Family Court inspite of coming to know about the filing of the petition."

¶203

It is held that even though addressee was not found at address, process server would be justified in returning notice as unserved without opting for affixture. It was observed that unless process server entertained a doubt that there is no likelihood of respondent being found in residence within a reasonable time, allowing of application for substituted service

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through paper publication would be justified. Fact that family Court had sent notices thrice and same had returned with endorsement that addressee was not available were considered as sufficient opportunity being given to addressee about proceedings. Fact that she was also pursuing criminal miscellaneous from same address was also taken into account.

¶207

As observed by Hon’ble Supreme Court in Parimal’s case,( supra) expression ‘sufficient cause’ contained in Order IX Rule 13 of CPC, should be interpreted liberally and not in narrow and pedantic manner. Only caution added was that unless case fell within four corners of Order IX Rule 13 of CPC, Court had no jurisdiction to set aside ex-parte decree.

¶208

At same time, it has to be kept in mind that second proviso to Order IX Rule 13 of CPC provides that decree cannot be set aside merely on ground that there is an irregularity in service of summons. Question however would be whether failure to exhaust other modes of service of summons before considering application for substituted service would be such an irregularity or would be a sufficient cause to set aside ex-parte decree.

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It is settled law that no person can be condemned unheard. Principle of audi-alterem-partem has been enshrined as fundamental right in our legal system. Elaborate procedure provided in Order V for service of summons would not require to be highlighted to realize emphasis placed on ensuring opportunity of participation in litigation.

¶212

Hon’ble Supreme Court in Neerja Realtors (P) Ltd. , case (supra) has emphasized need for strict compliance. In instant case, notice was issued to petitioner through process server and process server’s endorsement was that 'no such person at address. Thereafter notice was issued by RPAD and postal shara thereon was ‘unserved, left’. Further, order dated 05.09.2011 allowing application for paper publication as noted above is as cryptic as it can be. On other hand, if plaintiff were to have substantiate that he had notice of proceedings in O.S.no.967/2010, bar under second proviso to Order IX Rule 13 of CPC would come into effect.

¶213

In instant case, except alleging that petitioner had stayed away from participating in proceedings despite having knowledge, there is no specific evidence or material to

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substantiate same. Hon’ble Supreme Court in several cases has held that while considering petition under Order IX Rule 13 of CPC, effort to do substantial justice should be preferred. Decree sought to be set aside is a decree for specific performance of agreement to sell immovable property. Admittedly, said agreement was denied both by petitioner as well as his vendor in O.S.no.67/2008, when it was filed before Additional Civil Judge and JMFC at Hoskote. Plaint in said suit was ordered to be returned for re-presentation before appropriate Court. Thereafter, it was re-presented before Principal Senior Civil Judge, Bangalore Rural District, Bangalore. When petitioner – defendant no.2 was a resident of Bangalore and had taken trouble of attending suit filed at Hoskote, there was no reason for him to have shunned suit at Bangalore that too after having filed written statement while it was pending before Court at Hoskote.

¶217

Facts in Parimal 's case (supra) were clearly distinguishable. Unlike in present case, where process server endorsed 'addressee not residing' and postman endorsed 'not residing left', and thereafter application for paper publication was allowed by non-speaking order, it is seen that respondent -

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wife in Parimal 's case had refused notice sent by RPAD, had refused to receive summons from process server after reading summons and even after passing of order for paper publication, petition for setting aside of ex parte decree for divorce was filed after four years, when her husband had already remarried and had children, held that sufficient cause has to be examined in facts and circumstances of each case and cannot be exercised in case of party 'not acting diligently or remaining inactive'. Since petitioner had diligently entered appearance along with defendant no.1 and had filed written statement in O.S.no.67/2008 filed before Civil Court at Hoskote would not qualify as remaining inactive or not acting diligently.

¶221

In Basant Singh 's case, summons was ordered simultaneously by ordinary process and registered post. Acknowledgement in either cases returned. Thereafter trial Court once again ordered fresh summons both by ordinary and registered post. It also ordered notice by paper publication in 'Dainik Bhaskar'. But paper publication was taken out in "Aacharan". In light of above facts, while considering contention that substituted service could be resorted to, only when Court was satisfied that defendant was avoiding service.

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Hon'ble Supreme Court held that publication in different newspapers was mere irregularity in service, which cast embargo on exercise of power under Order IX Rule 13 of CPC. While passing said order, it was observed that petitioner had not contended that notices sent by post were not to correct address. But in instant case, petitioner has specifically stated that he was residing elsewhere and summons issued in both modes returned unsuccessful leaving no scope for drawing presumption.

¶225

In Smt. Indira Kashyap 's case (supra), petitioner -

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wife had failed to establish her specific contention urged in petition under Order IX Rule 13 that after she had appeared along with her husband before Family Court, it was adjourned by giving long date to enable them to reduce differences, there was reconciliation, due to which she had not appeared. In that context, while considering reason for delay, Court drew adverse inference against her for not examining her informer, who told her about ex-parte divorce decree. Though, in instant case, petitioner has not specifically named his informer, but petition was filed without much delay and before equities could set in

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favour of respondent - plaintiff would distinguish it from above case.

¶230

Even in Smt. P.V. Prema 's case (supra), it was noted that petitioner - wife therein was prosecuting another petition from address to which notices sent three times through Court and three times through RPAD had returned unserved. In said context, referring to Section 27 of General Clauses Act, presumption of deemed service was drawn. This Court specifically noted that on each occasion when notice was sent by RPAD, postman had gone to address seven times each and she failed to be present at address to receive notice. Therefore, it concluded that she had intentionally evaded service of notice. In that context, this Court turned down challenge to recourse to procedure under Order V rule 20 of CPC on basis of noncompliance with Order V Rule 17 of CPC. Therefore, ratio in above decisions would not squarely apply to present case.

¶231

Ratio in Neerja Realtors (P) Ltd. (supra), is sought to be distinguished by contending that said case did not involve sale transaction and also on ground that petitioner in instant case, was well aware of plaintiff's suit having appeared in

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O.S.no.967/2010 and failing to verify its status after transfer by simply claiming that he was not aware of proceedings and no notice was served, which would not be conduct attracting 'sufficient cause' under Order IX Rule 13 of CPC. Further distinction on ground that in Neerja Realtors (P) Ltd., (supra) notice by RPAD was not sent, unlike in instant case, notice was sent by RPAD, which as per Section 27 of General Clauses Act would constitute deemed service, placing reliance on decision in M/s Ajeet Seeds Ltd., Vs. K Gopala Krishnaiah,⁵ .

¶235

But said factors would not be much consequence. Firstly, Section 27 of General Clauses Act referred to in M/s Ajeet Seeds Ltd. case (supra) itself states that service would be deemed unless contrary is proved . In instant case, notice issued by RPAD had returned with postal shara as ' unserved left ', which would sufficiently prove that there was no service. Secondly, order of trial Court returning plaint in OS no.967/2010 did not specify date and Court before which it was to be represented. Thus, placing burden upon petitioner to very status would be too onerous, especially in absence of any effort

¶236

5 AIR 2014 SC 3057 .

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to establish that petitioner was in any manner aware of proceedings.

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In view of above discussion, point for consideration

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is answered in negative. Consequently, following:

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ORDER

¶243

i. Appeal is allowed.

¶244

ii. Impugned order is set aside.

¶245

iii. Misc. Petition.no.2/2013 is allowed. Ex- p arte judgment and decree dated 03.02.2012 passed by Principal Senior Civil Judge, Bangalore Rural District, Bangalore in O.S.no.967/2010 is set aside. Since suit is of year 2010 and contesting parties are represented before this Court, they are directed to appear before trial Court without awaiting fresh notice on 23.01.2023. Trial Court shall thereafter issue summons to defendant no.1, permit defendant no.2 to file written statement and thereafter proceed to dispose of suit in accordance with law as expeditiously as possible.

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Psg*/GRD

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Sd/JUDGE

Sri R Ravichandar v. Sri N Mubeen

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Sri R Ravichandar v. Sri N Mubeen

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