Rajaram S. Okade v. Suma B. Maniyani and Bhaskar Ram Maniyani

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 22577 of 2007(K) -------------------------OS.1/1994 of SUB COURT, KASARGOD .................... PETITIONER: ------------ RAJARAM S.OKADE, PRESENTLY RESIDING AT AHMED RAMADHAN JUMMA EST. DUBAI, UAE. BY ADV. SRI.S.VINOD BHAT RESPONDENTS: ------------- 1. SMT.SUMA B. MANIYANI, W/O BHASKAR MANIYANI, RESIDING AT DOOR NO.213, KUSHAL NAGAR, K.G.HALLI, BANGALORE, KARNATAKA STATE. 2. BHASKAR RAM MANIYANI, S/O KUNHIRAMA MANIYANI, RESIDING AT MUNDAPALLA OF MULIYAR VILLAGE, MULLAYAR P.O., KASARGOD TALUK & DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 SRI.K.JAYESH MOHANKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **Petitioners’ Exhibits:-** - Ext.P1:- Copy of decree dt. 3.10.1994 in O.S. 1/1994 on the file of Sub Court, Kasargod. - Ext.P2:Copy of the report dt. 28.7.98 submitted by the bailiff - Ext.P3: Copy of the deposition of 1[st] respondent in O.S. 1/1994 of Sub Court, Kasargod dt. 30.10.2006 - Ext.P4: Copy of I.A. 139/2006 in I.A.836/2002 in O.S. 1/1994 on the file of Sub Court, Kasargod dt. 17.2.2006 - Ext.P5: Copy of the report by the process server dt. 11.10.2000 - Ext.P6: Copy of the report by the process server dt. 18.7.2001 - Ext.P7: Copy of I.A. 835/2002 in O.S. 1/1994 on the file of Sub Court, Kasargod dt. 11.11.2002 - Ext.P8: Copy of I.A. 836/2002 in O.S.1/1994 on the file of Sub Court, Kasargod dt. 11.11.2002 - Ext.P9: Copy of common order dt. 29.3.2007 in I.A. 835/2002 and I.A.836/2002 in O.S. 1/1994 on the file of Sub Court, Kasargod. Okb/- //True copy// P.A. to Judge ## **M. SASIDHARAN NAMBIAR, J.** --------------------------------------------- **W.P(C). NO. 22577 OF 2007** -------------------------------------------- **Dated this the 26[th] day of June, 2008** ## **JUDGMENT** Petitioner is the plaintiff in O.S. 1 of 1994 before Sub Court, Kasargod. Suit was filed against the respondents for realization of Rs.6,78,681.20/- contending that petitioner stood as a surety to the loan obtained by second respondent while petitioner and second respondent were working in U.A.E., and that loan was obtained for purchasing plaint A schedule property shown in the plaint and on failure of the second respondent to discharge the loan, as surety, petitioner had to discharge the same and utilizing the loan amount plaint A schedule property was purchased jointly in the name of the respondents. Plaint itself discloses that there was a judicial separation of respondents, though petitioner contended that it is fraudulent one and is not binding on him. Suit was decreed on 3.10.1994. Ext.P1 decree shows that first respondent/second defendant was 2 WPC22577/07 exparte and second respondent/first defendant withdrew the contentions raised in the written statement and therefore suit was decreed directing defendants to pay Rs.6,78,681.20/- with interest @ 15% from 30.11.1993 and costs. Since first respondent was residing at Bangalore and plaint A schedule property is also at Bangalore, petitioner got the decree transferred to City Civil Court, Bangalore. In that execution petition, plaint A schedule property was sold and purchased by the decree holder. Before sale, first respondent filed Ext.P7 and P8 applications; former under Section 5 of Limitation Act and the latter under Rule 13 of Order IX of Code of Civil Procedure to condone the delay and to set aside the exparte decree, contending that there was no personal service of summons on her and the decree was obtained by petitioner in collusion with second respondent, who was separated from first respondent by a judicial order of separation in 1992, and first respondent came to know about the decree only on 8.11.2002 and sought to condone the delay and to set aside exparte 3 WPC22577/07 decree. Petitioner filed objections contending that there was valid service. It was also contended that plaint A schedule property was attached in the execution petition and therefore petitioner had knowledge about the suit and the decree earlier, and hence petitions are to be dismissed. Under Ext.P9 order learned Sub Judge allowed the petitions on payment of cost of Rs.1,000/-. This petition is filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that the trial court did not properly consider the applications and following the decision in **1985 KLT 613 (Aboobacker v. John)** without considering whether facts are applicable to the facts of the case, allowed the application taking a liberal view, and therefore the order is not sustainable. The argument of the learned counsel is that under Rule 20 of Order V of Code of Civil Procedure, Court is competent to order substituted 4 WPC22577/07 service either by affixture or by publication and when publication was effected and it is not pleaded or proved that the publication was not proper, service of summons by publication is a sufficient service and therefore the date of publication is to be taken as the date of duly service and petitioner is to be imputed with knowledge of the decree on the date of publication and therefore petitions filed in 2004, when the decree was passed in October 1994, should have been rejected. Learned counsel relied on the decision of Patna High Court in **Om Prakash v. Bina Saha(AIR 1984 PATNA 77)** and argued that Court is competent to order substituted service by publication alone and when first respondent has no case that there was no publication, it should have been found that there was due service of summons on first respondent and she is not entitled to get the decree set aside after a delay of 3780 days. Relying on the decision of the Allahabad High Court in **Ram Pyari Devi v. IInd Addl. District Judge, Azamgarh (AIR 1989 Allahabad 93)** it was argued that service by publication is 5 WPC22577/07 also a valid service as provided under Rule 20 of Order V and learned Sub Judge was not justified in setting aside the exparte decree. Reliance was also placed on the decision of the Punjab High Court in **Tarlochan Singh v. State Bank of India & Ors. (AIR 2007 (Doc) 81 P&H)** . 4. Learned counsel appearing for first respondent, relying on the explanation to Article 123 of Limitation Act, 1963, argued that service by affixture as provided under Rule 20 of Order V cannot be treated as a valid service and therefore first respondent is entitled to apply to set aside the exparte decree on getting knowledge of the decree and on that ground petitions cannot be dismissed. Learned counsel also argued that allegation of the plaint establishes that liability was only on second respondent and suit was decreed only on the basis of the admission of second respondent as first respondent did not appear and she could not appear as the summons was not served on her and she was unaware of the suit and when the trial Court granted an opportunity to have a decision on merits this 6 WPC22577/07 Court, exercising the supervisory powers under Article 227 of the Constitution of India, may not interfere with that order. 5. Before considering the merit of Ext.P9 order, it is necessary to bear in mind the nature of the claim raised against the petitioner in the suit. As pointed out by learned counsel appearing for first respondent, plaint discloses that the marriage of first respondent and second respondent was dissolved much earlier to the institution of the suit. What was pleaded in the plaint is that petitioner stood as a surety to the loan transaction obtained by second respondent. True, there is a statement that first respondent along with second respondent approached petitioner and requested him to be a surety. But pleading is specific that petitioner stood as surety for the loan transaction obtained by second respondent and not for a loan transaction obtained by first respondent also. Claim was that petitioner had to discharge the loan on the failure of second respondent to repay the loan. It is in such 7 WPC22577/07 circumstances a decree was jointly sought against both respondents. The suit was decreed exparte against first respondent and based on the withdrawal of the contentions raised by second respondent against him also. Judgment shows that question whether petitioner is entitled to the decree as against first respondent on the sole basis of the alleged request of first respondent also to be a surety was not considered by the Court at all. The fact that first respondent was exparte by itself is not a justification to grant the decree as against her without even casually considering that aspect. It is on these factual back ground Ext.P9 order is to be considered. 6. The case of first respondent was that she was not served with summons in the suit. Even petitioner has no case that there was personal service of summons on the respondent. The argument of the learned counsel appearing for petitioner is that as there was service of summons by publication, as provided under Rule 20 of Order V of Code of Civil Procedure it is a valid service. 8 WPC22577/07 True, service by publication, which is one of the mode provided under Rule 20 of Order V, is also a valid service, provided it is effected under the orders of the Court and as provided under the rules. Such a service is definitely “due service” as provided under Rule 13 of Order IX of the Code. But fact that there was a publication pursuant to an order under Rule 20 of Order V of the Code of Civil Procedure is not conclusive evidence with regard to due service. Even if there is a publication, a defendant is entitled to plead and prove that though there was a publication, that publication was effected in a newspaper which has no circulation in the area where the defendant was residing. So also if there was no order recording the objective satisfaction of the Court as contemplated under sub rule 1 of Rule 20 of Order V of the Code, fact that there was publication cannot be treated as due service. Therefore, for the sole reason that there was a publication in one newspaper by itself it cannot be held that there was due service and period for setting aside the exparte decree shall start to run from the date of 9 WPC22577/07 that publication. It is for the very purpose the explanation was added to Article 123 of Limitation Act to the effect that for the purpose of Article 123, substituted service under Rule 20 of Order V shall not be deemed to be due service. But this explanation cannot be introduced to Order IX Rule 13 as canvassed by the learned counsel appearing for first respondent to hold that service under Rule 20 of Order V of the Code is not a due service at all for the purpose of Rule 13 of Order IX. 7. The argument of the learned counsel appearing for petitioner is that there is no specific case in the petitions filed before the trial court that there was no publication in any newspaper or that publication was in a newspaper, which had no circulation either at the place where first respondent was residing or outside the jurisdiction of the Court. True, there is no such allegation. But question whether evidence on record establish that publication was effected in a newspaper having circulation in Bangalore, when even according to the petitioner first 10 WPC22577/07 respondent was residing at that time is very relevant to decide whether there was due service. Unfortunately records relating to the publication and other materials showing service were not available before the trial court as except part I records all other records were destroyed because of the delay in filing the petition under Rule 13 of Order IX of the Code. Question is whether absence of the records would enable petitioner to contend that publication was effected in a newspaper having circulation at Bangalore or will enable first respondent to contend that it was not published in a newspaper having circulation at Bangalore. The argument of the learned counsel appearing for petitioner is that as Court has directed publication as provided under Rule 20 of Order V it is to be taken that it was published in a newspaper having circulation in the locality where first respondent was residing at that time. In the absence of any material to throw light as to in which paper the publication was effected or the order of the court directing publication, it is not possible either to hold that 11 WPC22577/07 there was a publication in a newspaper having circulation at Bangalore where first respondent was residing or not. 8. The question then is whether first respondent was aware of the decree earlier to the date on which she claims to have knowledge of the decree. What was claimed by first respondent in the petitions as well as at the time of evidence was that she came to know about the decree only on 8.11.2002. The argument of the learned counsel appearing for petitioner is that Ext.P2, order of attachment, was effected in the house where admittedly first respondent was residing on 28.7.1998 and Ext.P5 and P6 orders were also affixed later respectively on 11.10.2000 and 18.7.2001 and in the light of these actions, first respondent cannot be heard to contend that she was not aware of the decree till 2001. Learned counsel also argued that when examined first respondent admitted that she was residing in that building and though summons was not personally served on first respondent, it was admitted by first respondent that the address shown by her in the applications filed before 12 WPC22577/07 the Court was not correct and in such circumstances it is to be deemed that first respondent was changing residence and so there is no reason to believe that first respondent was not aware of the decree at least in 1998. Ext.P2 shows that after the decree was got transferred to City Civil Court, Bangalore from Sub Court, Kasargod, execution petition was filed before that Court. In the execution petition, property was attached and order of attachment was affixed under Ext.P2. Ext.P2 does not show that first respondent was present at the time of attachment or affixture. Though Ext.P2 shows that it was attested by two witnesses, none of the witnesses were examined to prove that there was a valid attachment or that fact of attachment was known to first respondent. Admittedly that building is one of the several flats and if there was an attachment as seen in Ext.P2, a neighbouring flat owner or resident could have been examined to prove the affixture or attachment. In the absence of any other evidence based on Ext.P2 it cannot be said that first respondent was aware of 13 WPC22577/07 the suit or the decree prior to 2001, as claimed by the petitioner. It is in these circumstances learned Sub Judge exercised discretion in favour of first respondent. 9. The question is whether that discretion is to be interfered in exercise of the supervisory jurisdiction of this Court under Article 227 of Constitution of India. When an opportunity was granted to the first respondent to have a decision on merits, especially when as stated earlier the pleadings as against first respondent was not taken into consideration by the learned Sub Judge while granting the decree, it is only in the interest of justice to grant an opportunity to have a decision so that justice will be met. Interest of justice warrants that first respondent is entitled to have a decision on merits. I do not find that except the time lag petitioner is not to be prejudiced by granting such an opportunity to the first respondent, especially when even according to first respondent second respondent is having equal right in the property and the decree passed in favour of second respondent will not be effected by the WPC22577/07 14 impugned order passed by the learned Sub Judge. In such circumstances writ petition is dismissed. **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-