Arundas Vs Priji

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 27TH DAY OF OCTOBER 2017/5TH KARTHIKA, 1939

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FAO.No. 45 of 2017 ()

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IA NO. 783/15 IN OS NO. 41/2012 OF HON'BLE SUB COURT, CHERTHALA

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APPELLANT/PETITIONER/DEFENDANT :

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ARUNDAS

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S/O. DASAPPAN, ADONE HOUSE, THURAVOOR P.O., THURAVOOR, SOUTH VILLAGE, CHERTHALA.

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BY ADV. SRI.P.SATHISAN

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RESPONDENT/COUNTER PETITIONER/PLAINTIFF:

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PRIJI, S/O. M.K.NARAYANA PILLAI, CHELANGATTU VEETTIL, KADAKARAPPALLY P.O., CHERTHALA.

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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bp

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FAO.No. 45 of 2017 ()

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APPENDIX

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PETITIONER'S ANNEXURES :

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ANNEXURE A: NOTARIZED COPY OF AFFIDAVIT OF APPELLANT'S FATHER NARRATING THE DETAILS.

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RESPONDENT'S ANNEXURES : NIL.

//TRUE COPY//

P.A. TO JUDGE

bp

'CR'

P.N.RAVINDRAN &

DEVAN RAMACHANDRAN, JJ.

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============================ F.A.O.No.45 of 2017

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============================

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Dated this the 27^th day of October, 2017

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JUDGMENT

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Devan Ramachandran, J.

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The unexpendable imperative for courts to ensure valid and proper service of summons and notices to defendants in a suit and other proceedings can never be overstated. The one singular precaution that courts have to be always cognizant of, to avert challenge to its orders and proceedings, is to make sure that the parties to litigation are served as per the prescription of the statutory provisions relating to such.

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Although the term “summons” is not defined in the Code of Civil Procedure (for short, “the CPC'), its proper service on the defendant is a fundamental rule of procedure. The significance of valid service of summons, in whatever way it may be effected, is that the defendant will be informed of the institution of the suit or the proceeding against him and he will thus be extended sufficient opportunity to resist it. The defendant's actual knowledge of the suit or proceeding would, in

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most cases, become irrelevant if service of summons or notice on him, as per the statutory mandate, is shown beyond reasonable doubt.

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The importance of this can never be lost sight of when we see that first defence and sometimes offence, to a suit or proceeding and to the orders and decrees passed by courts, that can be impelled by a defendant, is that he had not been validly served with summons or notice when the law mandated such service in a particular manner. It is well established that when the law provides something to be done in a particular manner then it has to be done in the same manner.

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We have begun this judgment in the manner above because we see that the challenge against a decree against him, by the appellant herein, is built on the specific defence that summons was not served on him as is required under the provisions of the CPC and we are also drawn to believe that he has made out a case on such grounds.

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First, to the most relevant facts:

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This appeal has been filed by the appellant who is a defendant in O.S.No.41 of 2012 on the files of the Sub Court, Cherthala. The suit was filed by the respondent herein as

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plaintiff for return of money alleged to have been availed as a loan by the defendant on the strength of a demand promissory note.

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It appears that the suit was decreed ex parte on 26.06.2012 but that no steps were taken by the appellant to have the same set aside. This led to execution proceedings being levied by the plaintiff, as E.P.No.125 of 2013, which is stated to be pending before the court below and a warrant of arrest against the appellant issued under Order 21 Rule 37 of the CPC.

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On knowing of these proceedings, the appellant moved an application under Order 9 Rule 13 of the CPC to have the ex parte decree set aside, along with a prayer seeking to condone the delay of 1170 days in filing the said application. The court below, however, on an examination of the factual factors pleaded, found that there was no satisfactory explanation for the delay 1170 days and dismissed the application. It is against this order that the appellant has filed this appeal.

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We have heard Sri.P.Sathisan, the learned counsel appearing for the appellant. Even though notice was served on the respondent, she has neither chosen to appear nor to have a counsel to represent her in these proceedings. We, therefore, are

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constrained to dispose of this appeal without hearing her version.

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The case of the appellant before the court below in support of the application to condone the delay of 1170 days was that the notice or summons from the court below in the suit was not served on him. According to him, the endorsements on the duplicate copy of the summons only show that the notice issued by the court was accepted by his father on 02.04.2012, even though there was no specific order from the court below to have it served on a adult member of his family. The learned counsel appearing for the appellant invites our attention to Order 5 Rule 15 of the CPC and says that it is only when the defendant is absent from his residence at the time when the service of notice is sought to be effected and when there is no likelihood of his being found at the residence within a reasonable time that the process server could have served the summons on an adult member of the family. The appellant admits that he cannot say with certainty whether his father was served in the manner as has been recorded by the process server but he contends that even if it was so, that was not proper service. He has an additional contention that his father is suffering from certain

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ailments and that even assuming that he was served, in the manner recorded by the process server, his father could have possibly forgotten and omitted to inform him because of his indisposition. The appellant avouches that, therefore, he was unaware of the proceedings before the court below which finally culminated in an ex parte decree against him.

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According to the appellant, it was only on 05.09.2015, when the plaintiff and two other persons came to his house and informed him about the decree and threatened to have him arrested under the provisions of Order 21 Rule 37 of the CPC that he came to be aware of the proceedings before the court below. He submits that he had immediately thereafter, filed I.A.No.783 of 2015 before the court below, which as per him, is a composite application to have the ex parte decree set aside and to condone the delay of 1170 days in filing the same.

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We have examined the proceedings of the court below. We notice that the summons was recorded to have been served on the father of the appellant at the original side by the court below on 02.04.2012. On such service being recorded, the court below went on to decree the suit on 26.06.2012, which is the next posting date after such service of summons and being the

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date notified in the summons for appearance of the defendant.

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On 30.10.2013, the respondent initiated execution proceedings by filing E.P.No.125 of 2013. The records would reveal that notice on this petition was ordered to be served on the appellant, by order dated 18.03.2014, and that the E.P. was listed to 28.06.2014 for his appearance. The proceedings paper indicates that on 28.06.2014 some counsel had appeared on behalf of the appellant and prayed for time to file objections and that thus the matter was listed to 07.11.2014. The court below thereafter by order dated 12.02.2015 directed the judgment debtor and the decree holder to be present on 24.06.2015, on which day, the judgment debtor was absent but the decree holder was present. The court, therefore, listed the case to 14.07.2015 for evidence of the decree holder and then to 19.09.2015. On that day, there was no sitting and the matter appears to be adjourned several times mostly because the court was not sitting. Finally, by order dated 08.02.2017, the court below ordered notice under Order 21 Rule 37 of the CPC as a last chance and posted the E.P. to 16.02.2017 for the objections of the appellant. It is in the meanwhile, that this appeal has been filed by the appellant before this court.

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On an analysis of the proceedings before the court below and the materials available before us, we see that the service of summons on the defendant has been recorded by the court below to have been completed both in the original side and in the execution proceedings because it was served on the father of the appellant. In the original side, the process server has recorded that the notice was served on the father of the appellant on 02.04.2012 and on that basis, the court below went on to decree the suit. The situation is not different in the execution petition either. In E.P.No.125 of 2013 again, notice is seen to have been served on the father of the appellant going by the endorsements made by the process server.

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It is the singular contention of the appellant that even though the notice may have been served on his father, it is possible that because of his indisposition, he would have forgotten about the same because according to him, his father suffers from ailments which even impairs his cognitive faculties. The appellant asserts that the court below, therefore, ought not to have treated the service to be completed on him, specially because under Order 5 Rule 15 of the CPC such service ought not to have been found complete unless it was found that the

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defendant was absent and that there was no likelihood of his being found at his residence within a reasonable time. The appellant vehemently maintains that these two conditions had not been found satisfied in this case and therefore, that the service of notice, presumably made under Order 5 Rule 15 of the CPC, cannot bind him and cannot be of detriment to his interest.

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We have considered the submissions made by Sri.P.Sathisan as above. We find substantial force in his contentions. It is true that the court below had taken out summons both on the original side and in the execution petition in the address available of the defendant. It is also more or less certain from the proceedings recorded before the court below that summons was served, though not on the appellant directly but on his father and that the court had recorded service to be complete under the provisions of Order 5 Rule 15 of the CPC, because there is no other provision that empowers such service.

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The question before us is whether it was justified on the part of the court below to have considered such service complete against the appellant specially because there is no mention in any of the proceedings before the court below that there was no likelihood of the appellant being found at his residence.

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The provisions of Order 5 Rule 15 of the CPC certainly empower the service of summons on a defendant in a suit on an adult member of his family, whether male or female, who is residing with him. The specific prescriptions for such service are also available in the said Rule and to understand its full import, we deem it necessary to read it in whole for which purpose, it is extracted as under:

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“15. Where service may be on an adult member of defendant's family – Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.”

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It is perspicuous from this that service of notice on an adult member can be ordered by the court below only if, when the service is sought to be effected on a defendant, there is no likelihood of him being found within a reasonable time at his residence and where he has no agent empowered to accept service on his behalf. There can be no doubt on this but the

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pertinent issue is whether a process server, who is deputed to serve notice on the defendant, can serve it on an adult member if he is not available at his residence without an express order of the court.

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The contention of Sri.P.Sathisan, the learned counsel is that even in cases where the defendant is unavailable, the court below is enjoined, while acting under the provisions of Order 5 Rule 15 of the CPC, to enter a finding that there is no likelihood of the defendant being found at his address within a reasonable time and that he has no agent empowered to accept service of summons. He contends that the court below can only thereafter issue orders under the provisions of this Rule to serve notice on an adult member.

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We have examined these submissions with some interest. There is no doubt that Order 5 Rule 15 of the CPC empowers service of summons on an adult member of the family of the defendant in the circumstances detailed therein. However, the question that begs an answer here is whether the process server could have served the notice on an adult member without a specific order to that effect being issued by the court below. We find force in the submissions of the learned counsel

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that this could not have been so and that such service cannot be considered to be a valid service. We find favour to hold from a purposive interpretative reading of the provisions of Order 5 Rule 15 that service of notice on a defendant can be done by service on an adult member of his family, who is residing with him, only if it is specifically so ordered by the court below. In the case at hand, the court below had not issued such specific orders while the process server had attempted to serve notice on the appellant. He had served it on the father of the appellant without the orders of the court and without the court having concluded prior that the defendant cannot be found at his residence within a reasonable time. We, therefore, cannot find that the appellant has been served summons properly by the court below in the suit proceedings.

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Similarly, the fact that summons was served in the execution petition is also more or less certain, but again, it is indisputable from the records that summons to the appellant, even in the execution petition, was served not directly but on his father.

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It is also germane that the endorsements of proceedings made by the court below on 28.06.2014, when the

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matter was called before it, show that the judgment debtor had sought time through an unnamed counsel for objection. This would normally indicate that a counsel had appeared on behalf of judgment debtor and in such circumstances, we would have then found the case against the appellant. However, what is disturbing to us in this case is that the proceedings sheet of the court below does not say which counsel had applied for time on behalf of the judgment debtor. Sri.P.Sathisan, learned counsel says that it is definitely possible that some kind of subterfuge may have been practised by the decree holder in causing somebody to appear on behalf of the appellant and to make it appear that he had entered appearance on that day. According to him, his client had not made any arrangements for a counsel to be present on 20.06.2014, because he was not even aware that an execution petition had been filed at that time. Since endorsements in the proceedings paper do not show who the counsel was who had appeared on 28.06.2014, we are compelled to find favour with the submissions of Sri.P.Sathisan, learned counsel for the appellant.

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We notice that in the impugned order, the court below found that there is no case, even for the appellant, that he is not

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in good terms with his father and, therefore, that there was no reason why the summons served on the father was not brought to the notice of the appellant. The court below appears to have thus concluded because of the failure of the appellant in not entering appearance or presenting himself before it in the suit or the execution proceedings. Even though there is substantial logic in the reasoning of the court below, we deem it appropriate to still order this appeal because we find that the service of notice on the appellant in both the stages was only under the provisions of Order 5 Rule 15 which according to us, perhaps would not be justified unless a finding is recorded that he was not available in the residence or that there was no likelihood of his being found at his residence in a reasonable time.

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In these circumstances and for the cause noticed above, we deem it appropriate to set aside the order of the court below so as to pave way for a fresh consideration of the suit at the hands of the court below. The order of the Sub Court, Cherthala in I.A.No.783 of 2015 in O.S.No.41 of 2015 dated 28.01.2017 impugned in this appeal is set aside and we consequently also set aside the ex parte decree dated 26.06.2012, after condoning the delay of 1170 days in filing the application seeking to set

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aside the decree. The court below shall endeavour to dispose of the suit after trial, as expeditiously as possible but not later than the 31^st of March, 2018. For this purpose, we direct the parties to be present in court on 20.11.2017. The appellant shall file his written statement without fail on that day itself. If on that day, the respondent herein, namely, the plaintiff is not present and is not represented through counsel, the court below shall give notice to the counsel appearing on her behalf and then thereafter list the case for trial in accordance with law and dispose of the matter within the time frame granted herein.

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The appeal is thus ordered, but in the particular facts and circumstances of this case, we make no order as to costs and direct the parties to suffer their respective costs.

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Sd/- P.N.RAVINDRAN JUDGE

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stu

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Sd/- DEVAN RAMACHANDRAN JUDGE

Arundas v. Priji

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Arundas v. Priji

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