Mohammed Shameer v. T.P. Abdul Majeed

**“C.R.”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943 F.A.O.NO.146 OF 2019** **AGAINST THE ORDER 02.08.2019 IN I.A.NO.1326 OF 2019 IN O.S.NO.118 OF 2017 OF THE I ADDITIONAL SUB COURT,** ## **KOZHIKODE** ## **APPELLANT/PETITIONER/DEFENDANT:** ## **MOHAMMED SHAMEER** **AGED 34 YEARS, S/O. KUNHIRAYIN, RESIDING AT KUYYODIYIL HOUSE, PALAKKUTTY, KODUVALLY P.O, KOZHIKODE DISTRICT-673 572.** **BY ADVS. HARISH R. MENON K.T.SHYAMKUMAR A.G.PRASANTH** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **T.P.ABDUL MAJEED, S/O. ALIKUTTY HAJI, KAVUNGAMKUYIYIL HOUSE, NELLAM KANDI, KODUVALLY PO, KOZHIKODE DISTRICT-673 572. BY ADV SRI.T.G.RAJENDRAN** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 10.01.2022, THE COURT ON 24.01.2022 DELIVERED THE FOLLOWING:** 2 F.A.O.No.146 of 2019 **“CR”** ## **JUDGMENT** ## Ajithkumar, J. An appeal under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. The respondent filed O.S.No.118 of 2017 before the I Additional Sub Court, Kozhikode against the appellant for recovery of an amount of Rs.90 lakhs along with interest. Service of summons in the suit on the appellant was effected through substituted service. Since the appellant failed to appear before the Court, he was set exparte. After recording evidence on the side of the respondent, the suit was decreed on 09.03.2018. 3. The respondent filed an execution petition and on getting information regarding the execution proceedings, the appellant approached the Sub Court by filing I.A.No.1325 of 2019 and I.A.No.1326 of 2019 with a prayer to condone the delay of 432 days and set aside the exparte decree dated 09.03.2018. The Sub Court, after hearing both sides, 3 F.A.O.No.146 of 2019 dismissed the applications as per a common order dated 02.08.2019. Feeling aggrieved thereof, the appellant has preferred this appeal. 4. On 26.08.2019, this Court stayed the proceedings in the execution petition for a period of one month and directed notice to the respondent. The order of stay has been extended from time to time and is still in force. On 3.12.2021 during the course of arguments this Court passed a query whether the respondent is an income tax assessee. The learned Counsel for the respondent, on instructions from the respondent, submitted that the respondent is not an income tax assessee. 5. Heard Advocate Sri.P.B.Krishnan on behalf of the appellant and learned Advocate Sri.T.G.Rajendran for the respondent. 6. The learned counsel appearing for the appellant would submit that the admitted position has been that the appellant was abroad during the relevant period and the summons was served only through substituted service. The 4 F.A.O.No.146 of 2019 learned counsel would contend that while effecting substituted service, the provisions of Order V, Rule 20 of the Code were not complied with and that by such service of summons, there was no possibility for the appellant to get any information regarding the proceedings in the suit. The counsel accordingly submits that there was sufficient reason to set aside the exparte decree and also to condone the delay even in the absence of any evidence. 7. The learned counsel appearing for the respondent, per contra, would contend that when the process server went to the house of the appellant for serving summons, it was his mother, who attested the factual report that he was abroad and that implies that the appellant did get information regarding the suit. The learned counsel further would contend that affixture was effected at the house where the appellant has been residing permanently and that the publication of the notice in the newspaper sufficiently has satisfied the requirement of Order V, Rule 20 of the Code. When the process server went to the house of the appellant for the 5 F.A.O.No.146 of 2019 affixture, the mother of the appellant purposefully avoided attesting the fact of affixture, which also would indicate that the appellant had every knowledge regarding the proceedings in the suit. The learned counsel further would contend that in the absence of any evidence, the delay is not liable to be condoned and the learned Sub Judge rightly had dismissed the application. 8. From the certified copy of the report regarding service on the appellant the notice issued on an application under Order XXXIII, Rule 5 of the Code filed in the suit, which has been placed on record by the learned counsel for the appellant, it is seen that the mother of the appellant had attested the endorsement on the same. It was she who informed the process server that the appellant was working abroad. It was after that the court passed an order for substituted service. The learned counsel for the appellant submitted that there was no valid affixture and the newspaper 'Pradeepam', in which the summons was published has no circulation in Koduvally area, where the appellant's residence 6 F.A.O.No.146 of 2019 is situated. The learned counsel also would submit that, at any rate, the appellant having been abroad during that period, the service of summons through substituted service cannot be treated as due service. 9. Rule 15 of Order V of the Code allows service of summons on an adult member of the defendant's family, who is residing in the same house, if there is no likelihood of his being found at the residence within a reasonable time. In order to resort Rule 15, it is mandatory that the defendant and such adult member are residing at the same address. In this case, admittedly, the appellant has been residing abroad, although his permanent residence is the address given in the plaint. Therefore the refusal by the mother of the appellant to receive the summons or attest the affixture would not satisfy the requirements of Order V, Rule 15 of the Code. 10. If summons is not able to be served by any other mode only the provisions of Order V Rule 20 of the Code can be invoked and substituted service effected. Rule 20 obliges the Court to satisfy itself before ordering substituted service 7 ## F.A.O.No.146 of 2019 that the defendant is keeping out of the way to avoid service or that for any other reason service cannot be effected in the ordinary way. Unless such conditions exist, an order passed under this rule may be vitiated by material irregularity. The observations of the Apex Court in **Auto Cars v. Trimurti Cargo Movers Pvt. Ltd. and others [(2018) 15 SCC 166]** is relevant in this context. That, the object behind sending the summons is essentially threefold; first, it is to apprise the defendant about the filing of a case by the plaintiff against him; second, to serve the defendant with the copy of the plaint filed against him; and third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. 11. Order V Rule 25 of the Code provides for the procedure for the service if a defendant is residing out of India and he has no agent in India empowered to accept service. In this case, admittedly the appellant, during the 8 F.A.O.No.146 of 2019 relevant period has not been residing in his address given in the plaint which is at Koduvally in Thamarassery Taluk. Immediately on receiving the report of the process server that the appellant was abroad, which implies that he has not been 'residing' in that address, the court proceeded to direct substituted service. In view of the provisions of Order V Rule 25 of the Code, the Court ought to have attempted to give summons at his address abroad by sending the summons by post, by electronic mail service or such other modes, as may be possible under the said Rule. The Court, without attempting such modes, effected substituted service. By doing so, there occurred violation of the provisions of Rule 20 of Order V of the Code. 12. Adding to that, the publication was made in a newspaper having circulation obviously within the city limits of Kozhikode. It may be noted that when the appellant was working abroad and the summons has been published in a local daily, one cannot be sure that it reaches the place where he has been available. In view of the purpose for which a 9 F.A.O.No.146 of 2019 summons is issued, as pointed out above, it can only be said that the publication in ‘Pradeepam’ daily did not at all satisfy the requirements of order V Rule 20 of the Code. Sub-rule (1A) of Order V, Rule 20 of the Code says that 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. The provision makes it clear that the newspaper shall be a daily newspaper, having circulation in the locality. The publication in the newspaper, therefore, shall not be an empty formality. Bearing in mind the purpose for which a summon is published, as has been explained by the Apex Court in **Auto Cars (supra)** , it is an obligation of every court making such publication to ensure that the newspaper in which the advertisement is given, shall have sufficient circulation in the locality, where the defendant last known to have actually and voluntarily resided, carried on business or personally worked for gain. It is noticed that often 10 F.A.O.No.146 of 2019 such advertisements are made in newspapers having a limited circulation or published in evening only. Such publications are not sufficient to satisfy the requirement of sub-rule (1A) of Order V, Rule 20 of the Code. We, therefore, direct all subordinate courts in the State to ensure that where service of summons or notice is made by advertisement, it shall be made only in the newspapers having sufficient circulation in the locality concerned. In view of what are stated above, neither the affixture nor the publication in newspaper made in this case can be treated as sufficient so as to infer due service of summons on the defendant. 13. There was a delay of 432 days. The case of the appellant is that he came to know regarding the exparte decree only when he got knowledge about the execution proceedings. Immediately, he filed the petition for setting aside the decree. We found above that there was no due service of summons. Article 123 of the Limitation Act, 1963 specifies that the time of 30 days for filing an application to set aside an exparte decree begins to run from the date of 11 F.A.O.No.146 of 2019 knowledge of the decree where the summons was not duly served. The explanation to Article 123 of the Limitation Act says that for the purpose of the Article, substituted service under Rule 20 of Order V of the Code shall not be treated as due service. In view of that matter, it can be said that there was practically no delay in filing the application for setting aside the exparte decree in this case. Accordingly, we hold that there was no due service of summons on the appellant and there is sufficient cause for condonation of the delay. Hence the decree dated 09.03.2018 is liable to be set aside. 14. The F.A.O. is therefore allowed and on setting aside the common order dated 02.08.2019, I.A.Nos.1325 and 1326 of 2019 in O.S.No.118 are allowed. O.S.No.118 of 2017 stands restored on file and both parties are directed to appear before the First Additional Sub Court, Kozhikode on 14.02.2022. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr