Varghese v. N. Peethambaran and Vincent K. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR** **TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929** **FAO.No. 227 of 2007()** **-------------------------------** **AGAINST THE ORDER DATED 28/03/2007 IN IA.1292/06,1291/06 IN OS.333/1994 of SUB COURT, MAVELIKKARA** **....................** ## **APPELLANT/1ST PETITIONER IN IA/1ST DEFENDANT:** **-----------------------------------------------------------------------** ## **VARGHESE,** **KEETICKAL HOUSE, CHEMMANADA, KARLAM P.O.,TRICHUR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, CHACKO KURIAKOSE, PUTHEN VEETTIL HOUSE, SOUTH MANORAMA, KOTTAYAM.** **BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN** ## **RESPONDENTS: RESPONDENT & 2ND PETITIONER PLAINTIFF & 2ND DEFENDANT** **---------------------------------------------------------------------** **1. N. PEETHAMBARAN, CHENNITTA VEEDU, PERUNGALA, KAYAMKULAM.** **2. VINCENT K.JOSEPH, KEETICKAL HOUSE, CHEMMANADA, KARLAM P.O.,TRICHUR.** **BY ADV. SRI.A.SHAFEEK** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. PADMANABHAN NAIR, J.** = = = = = = = = = = = = = = = = = = = ## **F.A.O. NO.227 OF 2007 = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of March, 2008** ## **J U D G M E N T** ## **--------------------** **First defendant in O.S. No.333 of 1994 on the file of the Subordinate Judge's Court, Mavelikkara is the appellant. Appeal is filed against the common order passed by the learned Sub Judge dismissing I.A. Nos.1291 and 1292 of 2006 filed by the appellant along with the second respondent in the appeal.** **2. Plaintiff-first respondent filed the suit against the the defendants, who are respectively the appellant, second respondent and their father, for money. Defendants 1 and 2 did not appear and contest the case. Third defendant alone appeared and contested the case. Suit as against the third defendant was dismissed. An ex parte decree was passed against defendants 1 and 2 on 28.9.2001. Defendants 1 and 2 filed I.A. No.1291 of 2006, a petition filed under Section 5 of the Limitation Act for condoning the delay of 1756 days in filing the petition to set aside the ex parte decree and I.A.** ## **F.A.O. NO.227 OF 2007** ## **-: 2 :-** **No.1292 of 2006, under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the ex parte decree. In the petition to condone delay it was averred that at the time of filing of the suit and also at the time of trial defendants 1 and 2 were residing in Saudi Arabia. It was averred that the third defendant did not inform them regarding the pendency of the suit. It was averred that they came to know about the suit only when they received notice on 12.8.2006, in the execution proceedings. It was averred that the name of the second defendant is Vincent K.Joseph, but in the plaint as well as in the decree his name is written as Wilson. It was averred that they came into India on 16.8.2006, executed a Power of Attorney in favour of Chacko Kuriakose to file petition. It was averred that there was a delay of 1756 days in filing the petition to set aside the ex parte decree. Hence they filed I.A. No.1291 of 2006 to condone the delay in filing the petition to set aside the ex parte decree. In the affidavit filed in support of the petition to set aside the ex parte decree it was averred that there was no transaction between the plaintiff and defendants 1 and 2 and they were working in Saudi Arabia. It** ## **F.A.O. NO.227 OF 2007** ## **-: 3 :-** **was averred that they did receive any summons or notice from the court and were unaware of the pendency of the suit. It was averred that they came to know about the suit only long after and thereafter the petition was filed with a petition to condone delay. Plaintiff filed an objection contending that petitions were not maintainable. It was contended that the petitions were filed only to delay the execution of the decree passed on 28.9.2001. It was contended that the third defendant, who was the father of defendants 1 and 2, contested the suit and the suit was disposed of on merits. It was contended that no sufficient grounds were made out in the petition to condone the inordinate delay or in the petition to set aside the ex parte decree. He prayed for dismissal of the petitions.** **3. Before the trial court Exhibits C1 and C2 were marked and the Power of Attorney Holder, who is the fatherin-law of the first defendant, was examined as P.W.1. Trial court found that defendants 1 and 2 had not shown any sufficient cause for condoning the delay and dismissed that petition. Consequentially, the petition filed to set aside the ex** ## **F.A.O. NO.227 OF 2007** ## **-: 4 :-** **parte decree was also dismissed. Challenging that order, this appeal is filed. The only question arising for consideration is whether defendants 1 and 2 have shown sufficient cause for condoning the delay in filing the petition to set aside the ex parte decree.** **4. In the plaint the address of the appellant and second respondent were shown as as if they were residing in Thrissur. Summons issued to defendants 1 and 2 were returned with endorsement that first defendant was in Gulf and second defendant was in Bombay. First defendant was working in Gulf countries at that time. Summons were again repeated. At that time summons was returned with endorsement that second defendant also gone to Gulf countries. Thereafter plaintiff filed a petition to to effect service of notice of defendants 1 and 2 by affixture in the last known residence and court premises. He also filed a petition to publish the notice in Madhyamam daily. Both petitions were allowed. Notice was published in the Madhyamam daily. Notice was also affixed in the last known address. So the notice of defendants 1 and 2 was effected by substituted** ## **F.A.O. NO.227 OF 2007** ## **-: 5 :-** **service. The stand taken by defendants 1 and 2 was that they were unaware of the pendency of the suit.** **5. Article 123 of the Limitation Act deals with time limit prescribed for filing a petition under Order IX Rule 13 CPC to set aside the ex parte decree. Explanation to Article 123 provides that for the purpose of this article substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service. Time limit prescribed is 30 days from the date of decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. So this is a case which has to be treated as a case in which there was no due service of summons. According to defendants 1 and 2 they came to know about the passing of the decree only when they received notice in the execution proceedings. According to them they came to know about the pendency of the proceedings only on 12.8.2006 and the petitions were filed on 24.8.2006. So actually there was no need for filing any petition for condoning the delay in this case at all. It is true that the decree was passed on 28.9.2001. But the evidence on record shows that** ## **F.A.O. NO.227 OF 2007** ## **-: 6 :-** **at the time of filing the suit and on the date of passing of the decree and even thereafter defendants 1 and 2 were not in India. Court below has given much reliance on the evidence of P.W.1, father-in-law of first defendant, in which he has stated that his son-in-law had knowledge about the suit.** **6. In Bheru Lal v. Shanti Lal (AIR 1985 Rajasthan 53) a learned Single Judge of the Rajasthan High Court had taken a view that what is required is not the knowledge regarding the hearing of the suit or pendency of the suit, but it is the date of knowledge of the decree. In Sushil Kumar Sabharwal v. Gurupreet Singh (2002) 5 SCC 377) also it was held that the important question to be considered is whether the defendant had knowledge about the decree. In Rajeshwari v. Jugal Kishore Gupta (AIR 1990 Madhya Pradesh 217) a learned Single Judge of the Madhya Pradesh High Court has taken a view that the trial court must record a finding to the effect that the defendant after getting knowledge about the hearing of the suit had sufficient time to appear and give answer.** ## **F.A.O. NO.227 OF 2007** ## **-: 7 :-** **7. In this case there is no such finding also. So the finding of the court below that the appellant and second respondent failed to give sufficient cause for their nonappearance is liable to be set aside. But at the same time it is to be noted that the first respondent-plaintiff had approached the court below in 1994 and a decree was passed in 2001 and till today the proceedings did not attain any finality. Material on record shows that there were laches on the part of the appellant and second respondent in contesting the case. So I am of the view that it is only just and proper that the appellant and second respondent be made liable to pay heavy costs, which I quantify at Rs.3,000/-.** **8. In the result, the appeal is allowed. The order passed by the court below in I.A. Nos.1291 and 1292 of 2006 is hereby set aside and those petitions shall stand allowed on condition that the appellant pays or deposits before this Court for payment to the first respondent an amount of Rs.3,000/- as costs irrespective of the fate of the suit on or before 31.3.2008. If the costs ordered is paid as above, the court below shall take O.S. No.333 of 1994 back to file and dispose** ## **F.A.O. NO.227 OF 2007** ## **-: 8 :-** **of the same afresh in accordance with law, as expeditiously as possible, at any rate within six months from the date of appearance of the parties before it. It is made clear that in case the costs is not paid as ordered above, this appeal shall stand dismissed.** **9. Parties are directed to appear before the court below on 10.4.2008.** **For compliance, post on 1.4.2008.** **K. PADMANABHAN NAIR, JUDGE.** **vsv** **K. PADMANABHAN NAIR, J. ===================== M.F.A.** **===================== J U D G M E N T ------------------------------------------TH MARCH, 2008**