C.K. Lokesh
Vs. P.E. Panduranga Naidu [1996] INSC 1175 (20 September 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
We
have heard learned counsel on both sides.
The
appellant is defendant in O.S. No. 288/84 on the file of the District Munsif Court, Cheyyar. The appellant was set ex-parte
on March 30, 1985. The respondent filed a suit for
declaration of his title and for injunction restraining the appellant from
interfering with the suit property, i.e., the land to the extent of 2 acres and
30 cents. It is admitted that personal service was not effected on the
appellant. It would appear that the Court has directed to effect the substitute
service by publication in the newspaper but that also did not reach the
appellant. On becoming aware of the ex-parte decree and order in 1990, the
appellant filed an application under Order 9, Rule 13, C.P.C. within 30 days
from the date of his knowledge to set aside the decree and order. He filed an
application under Section 5 of the Limitation Act to condone the delay. The
District Judge condoned the delay holding that :
"I
uphold the submissions of the petitioner that the petitioner had no knowledge
of the case nor he was aware of the pending case, and therefore, he is entitled
to prefer this petition within 30 days from the date of knowledge. Hence the
petition is allowed." Against the aforesaid order, the respondent carried
the matter in revision. The learned single Judge allowed the petition setting
aside the order passed by the District Judge. Thus, this appeal by special
leave.
It is
contended by Sri Sampath, learned counsel for the respondent, that the
respondent had taken all the steps available under Order 5 CPC including of
effecting service through substitute service under Rule 20A, Order 5 CPC.
Therefore,
the Court was right in setting the appellant ex parte and passing the ex-parte
decree. The learned District Judge after going through the entire material on
record came to the above conclusion that the appellant had not been served with
a notice and, therefore, he was entitled to file the application under Article
123 of the Schedule of Limitation Act, which is 30 days from the date of
knowledge.
Accordingly,
the application came to be filed, through belated by 2015 days. Under these circumstances,
the learned District Judge was right in holding that the appellant had filed
the application to set aside the ex-parte appeal within 30 days from the date
of knowledge. The High Court was clearly in error in interfering with the order
passed by the District Judge.
The
appeal is accordingly allowed. The order of the High Court is set aside and
that of the District Judge stands confirmed. The appellant is directed to
appear before the District Judge on 28th October, 1996 and he should also file a written
statement. The learned District Judge is directed to dispose of the suit as
expeditiously as possible. No costs.
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