K.C. Jose v. Sajan J. Pynunkal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 FAO.No. 271 of 2011() --------------------I.A.Nos.3103/10 & 3104/10 IN OS.883/2008 of II ADDL.SUB COURT,ERNAKULAM .................... ## APPELLANT/PLAINTIFF ----------------------------- K.C. JOSE ,S/O MATHAI CHACKO, AGED 50,KIZHAKEVATTOM PALLI KAVALA, MUDICKAL P.O, PERUMBAVOOR BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR SMT.RENJINI RAJENDRAN RESPONDENT --------------- SAJAN J.PYNUNKAL, S/O JOSEPH XAVIER, PYNUKAL HOUSE, PLOT NO.E31 CHANGAMPUZHA NAGAR P.O, SOUTH KALAMASSERY-682 033. ADV. SRI.G.RAJAGOPAL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/11/2011, ALONG WITH FAO NO. 272 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * * * * * * * * * *** F.A.O.Nos.271 and 272 of 2011 ---------------------------------------Dated this the 29[th] day of November 2011 ## **J U D G M E N T** ## **K.M.JOSEPH,J** F.A.O No.271 is filed against an order dismissing the application filed by the appellant to set aside the ex parte decree in O.S.No.883 of 2008 and condone the delay of 340 days in filing the application and F.A.O No.272 is directed against an order by which the court below has dismissed the application filed by the appellant to set aside the ex parte decree in O.S.No.871 of 2008 and condone the delay of 340 days in filing the application. Both suits are money suits filed by respondents. 2. We have heard the learned counsel for the appellant and the learned counsel for the respondent. In O.S.No.883 of 2008, according to the learned counsel for the appellant, having regard to Order 5 Rule 9 sub Rule (3), there is no service of summons as provided in law. He would submit that the appellant is working in Chennai and not available in his residence in Ernakulam. Under Order 5 Rule 9 what is contemplated is personal service. He would submit that in O.S.No.883 of 2008, 2 F.A.O.Nos.271 & 272 of 2011 there is no personal service. Perusal of the records would show that service is effected by registered post on the wife of the appellant. According to him, this cannot be countenanced as service in law. 3. As far as O.S.No.871 of 2008 is concerned, the learned counsel for the appellant would submit that no doubt, the records show that the appellant's wife was served personally on 16/01/2009. The ex parte decree in both cases were passed on 03/04/2009. He further contends that in the impugned order, no doubt, reference is made to appearance of a lawyer. But, it is the appellant's case that no vakalath is executed and no lawyer is actually engaged. In short, according to the appellant, there is sufficient cause for non-appearance. He would submit that there is a case on merits and there may be an adjudicated decision in the interests of justice. 4. Per contra, the learned counsel for the respondent/decree holder would oppose the appeals. He would submit that as far as O.S.No.871 of 2008 is concerned, notice was served on the wife of the appellant on 29/10/2008 and 07/11/2008. It was further pointed out that actually this is a case where an application was filed for attachment before judgment 3 F.A.O.Nos.271 & 272 of 2011 and notice was served on the appellant. Attachment was ordered by the court and this would show that the appellant was fully aware of the pendency of the proceedings. Further, the learned counsel for the respondent pointed out that a lawyer appeared for the appellant in O.S.No.871 of 2008 on two occasions i.e. on 20/11/2008 and 26/02/2009. 5. The learned counsel for the respondent would submit that as far as O.S.No.883 of 2008 is concerned, admittedly, service on the wife of the appellant is effected by registered post. But, he would submit that Order 5 Rule 9 should be read along with Order 5 Rule 15 which says that service may be on an adult member of the defendant's family. In O.S.No.883 of 2008, service being effected on the wife of the appellant, it can be reckoned as sufficient service. It is also submitted that having regard to the presumption available as per the provisions of the General Clauses Act, it is not open to the appellant to contend that there is no valid service. 6. It may be true that as contended by the respondent, the contention of the appellant may not be really justified. As far as O.S.No.871 of 2008 is concerned, admittedly the wife was served and a lawyer appeared twice on behalf of the appellant in 4 F.A.O.Nos.271 & 272 of 2011 the court below. In these circumstances, it is difficult to believe that there was no service or that the appellant was not aware of the proceedings. As far as O.S.No.883 of 2008 is concerned, service is effected on the wife of the appellant by registered post. More importantly, we notice the judgment of the Apex Court reported in **Sunil Poddar v. Union Bank of India [2008** **(2) KLT SN 15 (C.No.16) Sessions Court ]** which reads as follows: The legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in O.5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking 5 F.A.O.Nos.271 & 272 of 2011 ## R.13 of O.9 of the Code. 7. Having regard to the fact that notice was served by registered post on the wife of the appellant, it is difficult to believe that the appellant is not aware of the proceedings. Having regard to the contention of the appellant that he may have a case on merits and there may be adjudication in the interests of justice, we feel that an opportunity can be given to the appellant to establish his case. However, it cannot be an unconditional order. 8. We allow the appeals and setting aside the impugned orders and allow the applications subject to the condition that the appellant will deposit a sum equivalent to 45% of the decree amounts within a period of six weeks from today. In case the appellant does not deposit the amount, the appeals will stand dismissed. ## **(K.M.JOSEPH, JUDGE)** ## **(A.M.SHAFFIQUE, JUDGE)** jsr // True Copy// PA to Judge F.A.O.Nos.271 & 272 of 2011 6 F.A.O.Nos.271 & 272 of 2011 7 8 F.A.O.Nos.271 & 272 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010