Case Note & Summary
The dispute arose from a civil suit filed by the respondent-plaintiff for declaration of title and permanent injunction restraining the appellant-defendant from interfering with suit land measuring 2 acres and 30 cents. The suit was numbered O.S. No. 288 of 1984 on the file of the District Munsif Court, Cheyyar. The appellant-defendant was set ex parte on March 30, 1985. It was admitted that personal service was not effected on the appellant. The trial court had directed substitute service by publication in a newspaper, but that publication did not reach the appellant. In 1990, upon becoming aware of the ex parte decree and order, the appellant-defendant filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 to set aside the ex parte decree, along with an application under Section 5 of the Limitation Act, 1963 to condone the delay. The District Judge allowed the application and condoned the delay, holding that the appellant had no knowledge of the case and was entitled to prefer the petition within 30 days from the date of knowledge. The respondent-plaintiff carried the matter in revision to the High Court. A learned single Judge of the High Court allowed the revision and set aside the District Judge's order. The appellant then appealed to the Supreme Court by special leave. Before the Supreme Court, the respondent contended that all steps available under Order 5 CPC, including substitute service under Rule 20A of Order 5, had been taken, and therefore the ex parte decree was proper. The appellant's contention, accepted by the District Judge, was that no notice was served and he had no knowledge of the pending suit, so he was entitled to file the application within 30 days from the date of knowledge under Article 123 of the Schedule to the Limitation Act, 1963, even though the application was filed 2015 days after the decree. The Supreme Court examined the material and held that the District Judge had correctly concluded that the appellant had not been served with notice. The Court observed that the High Court was clearly in error in interfering with the order passed by the District Judge. Accordingly, the Supreme Court allowed the appeal, set aside the order of the High Court, and confirmed the District Judge's order condoning delay and allowing the application. The appellant was directed to appear before the District Judge on 28th October, 1996 and to file a written statement. The District Judge was directed to dispose of the suit as expeditiously as possible. No costs were awarded.
Headnote
A) Limitation Law - Condonation of Delay - Article 123 of Limitation Act, 1963 - Defendant filed application to set aside ex parte decree within 30 days from date of knowledge despite delay of 2015 days from decree - District Judge held defendant had no knowledge of case and condoned delay - Supreme Court upheld this as correct because limitation for ex parte decree runs from date of knowledge when no service effected. B) Civil Procedure - Setting Aside Ex Parte Decree - Order 9 Rule 13 CPC - Personal service on defendant was not effected and substitute service by newspaper publication did not reach him - Defendant was set ex parte on March 30, 1985 without effective notice - Supreme Court held High Court erred in setting aside District Judge's order; directed defendant to appear and file written statement before District Judge. C) Civil Procedure - Revision Jurisdiction - Interference with findings of fact - Respondent contended all steps including substitute service under Order 5 Rule 20A CPC were taken - High Court in revision allowed respondent's petition and set aside District Judge's order - Supreme Court held High Court was clearly in error as District Judge had examined entire material and concluded lack of service; District Judge's order restored.
Issue of Consideration
Whether the High Court in revision was justified in setting aside the District Judge's order condoning delay in filing an application under Order 9 Rule 13 CPC when the defendant had no knowledge of the suit and filed the application within 30 days from the date of knowledge
Final Decision
Appeal allowed. The order of the High Court was set aside and the order of the District Judge was confirmed. The appellant was directed to appear before the District Judge on 28th October, 1996 and file a written statement. The District Judge was directed to dispose of the suit as expeditiously as possible. No costs.
Law Points
- When defendant had no knowledge of suit and filed application under Order 9 Rule 13 CPC within 30 days from date of knowledge
- delay is condonable under Article 123 of Limitation Act
- 1963
- substitute service under Order 5 Rule 20A CPC is not effective unless notice actually reaches defendant
- High Court in revision should not interfere with District Judge's factual finding on service unless perverse
