Shamsudheen (deceased) and others v. Fathima and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 FAO NO. 109 OF 2017** **AGAINST THE ORDER DATED 24/03/2017 IN I.A NO.2627 OF 2015 AND I.A.NO.2627(a) IN O.S.NO.767/2009 ON THE FILE OF THE PRINCIPAL SUB COURT,IRINJALAKUDA** **APPELLANT/DEFENDANT NO.2:** - **1 SHAMSUDHEEN [DIED] AGED 56, S/O.VALIYAVEETTIL ABDUL KADHAR HAJI, PARAVUR DESOM & VILLAGE & TALUK.** - **2 ADDL.A2 SUBAIDA AGED 52 YEARS** - **HOUSE HOLD, W/O.SHAMSUDHEEN, VALIYAVEETTIL, PARAVUR DESOM, PARAVUR VILLAGE, PARAVUR TALUK** - **3 ADDL.A3 SHIJAS AGED 35 YEARS** - **BUSINESS, S/O.SHAMSUDHEEN, VALIYAVEETTIL, PARAVUR DESOM, PARAVUR VILLAGE, PARAVUR TALUK** - **4 ADDL.A4 SHEMLIN AGED 32 YEARS** - **HOUSE HOLD, D/O.SHAMSUDHEEN, VALIYAVEETTIL, PARAVUR DESOM, PARAVUR VILLAGE, PARAVUR TALUK** - **5 ADDL.A5 SHAMLIN AGED 30 YEARS** - **HOUSE HOLD, D/O.SHAMSUDHEEN, VALIYAVEETTIL, PARAVUR DESOM, PARAVUR VILLAGE, PARAVUR TALUK** **BY ADVS.** **SRI.P.M.ABDUL JALEEL (KODUNGALLUR)** 2 FAO No.109 of 2017 ## **SRI.VINOD JABAR** ## **RESPONDENTS/PLAINTIFF AND DEFENDANT NO.1:** **1 FATHIMA AGED 61, W/O.CHULAKKADAVIL ABDUL ASEES, AZHIKKODE DESOM & VILLAGE, KODUNGALLUR TALUK680666.** - **2 SUHARABI** **AGED 59 YEARS** **D/O.PADIYATH PUTHENKATTIL KUNJUMOYTHEEN, ERIYAD DESOM & VILLAGE, KODUNGALLUR TALUK-680666.** - **3 ADDL.R3 FATHIMA AGED 85 YEARS** **W/O.VALIYAVEETTIL ABDUL KADHAR HAJI, ERIYAD DESOM, ERIYAD VILLAGE, KODUNGALLUR TALUK.** **(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AND ADDITIONAL RESPONDENT 3 AS PER THE ORDER DATED 31.05.2023 IN I.A NO.1 OF 2022 IN FAO NO.109 OF 2017).** **R1 BY ADV. SRI.K.A.NOUSHAD** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 FAO No.109 of 2017 ## **J U D G M E N T** ## P.G.Ajithkumar, J. This is an appeal filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. I.A No.2627 of 2015, filed for condonation of delay and I.A No.2627(a) of 2015, filed for setting aside ex parte decree in O.S.No.767 of 2009 before the Sub Court, Irinjalakuda were dismissed as per a common order dated 24.03.2017. The appellant assails the said order in this appeal. 2. This appeal was admitted on 05.07.2017. On that day, as per order in I.A No.588 of 2017, execution of the decree in O.S.No.767 of 2009 was stayed. Pending the appeal, the appellant expired and his legal representatives were impleaded as additional appellant Nos.2 to 5 and additional respondent No.3. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1[st] respondent. 4. The appellant, as power of attorney of the 2[nd] 4 FAO No.109 of 2017 respondent entered into an agreement with the 1[st] respondent for sale of 30.800 cents of property belonging to the 2[nd] respondent. The 1[st] respondent filed O.S No.767 of 2009 for recovery of advance sale consideration paid in terms of the said agreement. The appellant remained exparte in the suit and an exparte decree was passed on 04.10.2011. The appellant would contend that no summons in the suit was served on him and only when the 2[nd] respondent, on his receiving a notice in the execution petition passed on that intimation, the appellant knew about the suit. He is said to have immediately filed the present interlocutory applications. There is a delay of 1389 days in filing the petition for setting aside the exparte decree. He seeks to condone the delay and to set aside the exparte decree on the said grounds. 5. The 1[st] respondent opposed the petitions. The appellant gave oral evidence as PW1. The Sub Court, Iringalakkuda after considering the rival contentions and evidence, held that there was constructive notice to the appellant, there is no reason to say that he was not aware of 5 FAO No.109 of 2017 the proceedings in the suit and practically the appellant being the power of attorney did not have any stake in the matter. Accordingly, the petitions were dismissed. 6. The learned counsel appearing for the appellant would submit that the 1[st] respondent, although having sufficient information about the place of residence of the appellant, opted not to take steps for service of summons on him in his address. Instead, service was effected by making a paper publication. The learned counsel would submit that publication was effected in an evening daily having no circulation in the area where the appellant has been residing and hence no service of summons could be inferred. The learned counsel appearing for the 1[st] respondent, on the other hand, would submit that being the power of attorney of the 2[nd] respondent, it cannot be assumed that he did not know about the suit having the 2[nd] respondent received the summons in the suit. 7. Touching the merits of the case, the learned counsel appearing for the 1[st] respondent would submit that 6 FAO No.109 of 2017 the appellant has no reason to assail the decree since the same would be executed against the principal, the 2[nd] respondent and his property. While deciding a petition for setting aside an ex parte decree, the merits of the suit shall not ordinarily be a point for consideration. What we observe concerning that contention is only that in view of the contention of the appellant that his father has already paid the entire sale consideration to the 2[nd] respondent, his interest in the subject matter of the suit cannot be ruled out altogether. 8. The essential ground for seeking condonation of delay and setting aside the decree is that no summons was served on the appellant. Indisputably, summons was not personally served on the appellant. Service of summons was effected through substituted service by taking out a paper publication. The contention of the appellant that the publication was in an evening daily, is not refuted by the 1[st] respondent. The appellant further would allege that the evening daily, in which the summons was notified did not have 7 FAO No.109 of 2017 circulation in the locality where the appellant has been residing. Evidently the appellant was residing at Paravoor, a distant place from Irinjalakuda and the publication of the summons was effected in an evening daily allegedly having no circulation in the locality of the appellant. That fact has been deposed before the Court by the appellant and there is no apparent reason to disbelieve that version. As such, it was the burden of the 1[st] respondent to establish the contrary. But there is no evidence in that regard from the side of the 1[st] respondent. 9. In **Mohammed Shameer v. T.P. Abdul Majeed [2022(2)KHC 642]** this court considered the question whether due service can be inferred if the summons is published in an evening daily having no wide circulation. It was held: - “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 8 FAO No.109 of 2017 of the purpose for which a 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 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 9 FAO No.109 of 2017 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.” 10. In the light of the aforesaid principle of law, the irresistible conclusion, in the facts of this case, is that there was no service of summons on the appellant and for that reason, the decree is liable to be set aside. There is nothing on record to show that the appellant got information regarding the suit ever before the matter was conveyed to him by the 2[nd] respondent. Therefore the delay is liable to be condoned. We are of the view that I.A No.2627 of 2015 and 2627(a) of 2015 are liable to be allowed, subject to payment of costs to the 1st respondent to mitigate the inconvenience caused to her as a result of setting aside the decree. Accordingly, this appeal is allowed on the condition of payment of a cost of Rs.10,000/-(Rupees Ten thousand only). The appellant shall pay the cost to the 1[st] respondent within a 10 FAO No.109 of 2017 period of three weeks from today. On such payment, I.A Nos.2627 of 2015 and 2627(a) of 2015 will stand allowed, and the Sub Court Irinjalakuda will restore O.S.No.767 of 2009 on file and proceed with it in accordance with law. It being a suit of 2009, the learned Sub Judge shall make every endeavor to dispose of the suit within a period of four months from the date of appearance of both parties. **==> picture [27 x 10] intentionally omitted <==** ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV