Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR.JUSTICE G. GIRISH MONDAY, THE 11TH DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 FAO NO. 126 OF 2022 AGAINST I.A.NO.1/2020 AND 2/2020 IN OS NO.137 OF 2014 OF SUB COURT, CHAVAKKAD APPELLANTS/PETITIONERS: 1 M/S.SANTHIMADOM BUILDERS AND DEVELOPERS TRUST, CHAIRMAN,
REPRESENTED BY V.N.RADHAKRISHNAN, AGED 68 YEARS, S/O.E.C.NARAYANASANTHI, SANTHIMADAM HOUSE, THEKKENALUVAZHI, NORTH PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN 683 513 2 RAMANI RADHA KRISHNAN, W/O.RADHAKRISHNAN, AGED 68 YEARS, SANTHIMADOM, PARAVUR TALUK, PARAVUR VILLAGE, THEKKENALUVAZHY, NORTH PARAVUR P.O., PIN 683513 RAGESH MANU, AGED 35 YEARS OLD, S/O.RADHAKRISHNAN, SANTHIMADOM, THEKKENALUVAZHY, NORTH PARAVUR P.O., PIN 683513, ERNAKULAM DISTRICT
BY ADVS. V.A.PRADEEP KUMAR ANOOP KRISHNA RESPONDENT/RESPONDENT: PRASANTH C MENON S/O.CHANDRASEKHARAN, SARATH NIVAS, ERNAKULAM, CHEMMANADU, PIN - 671317 BY ADV K.I.SAGEER THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
G. Girish, J.
The defendants in O.S.No.137 of 2014 of the Sub Court, Chavakkad has preferred this appeal under Section 104 read with
Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.
2. In the above suit, the Sub Court, Chavakkad passed an
ex parte money decree against the petitioners on 28.11.2015. The petitioners filed I.A.No.1 of 2020 for the condonation of delay of 1724 days, and I.A.No.2 of 2020 for setting aside the ex parte decree, before the trial court. The learned Sub Judge dismissed both the above applications by the impugned common order dated
19.09.2022. Aggrieved by the above verdict, the petitioners are before this Court with this appeal.
3. According to the petitioners, they did not receive
summons, and nor did they get any intimation about the suit instituted by the respondent-plaintiff. It is stated that, in connection with the treatment for heart ailment of the 1st petitioner, the
petitioners were away from their residence for a long time. The petitioners are said to have received information regarding the ex parte decree passed against them only at the time when they received notice in the execution proceedings initiated by the respondent-plaintiff. For the above reason, the petitioners seek to reverse the impugned common order passed by the Sub Court, Chavakkad and to set aside the ex parte decree passed against them in O.S.No.137 of 2014 of the said court.
4. The respondent-plaintiff appeared through his counsel.
5. Heard the learned counsel for the appellant, and the learned counsel for the respondent.
6. It is apparent from the case records that substituted
service of summons by way of affixture and paper publication was resorted to in O.S.No.137 of 2014 of the Sub Court, Chavakkad. It was so necessitated since the summons issued to the petitioners through court process, and through registered post, were returned with the endorsement that they are not residing in that address.
7. The affixture of summons has been done at the locked
residence of the petitioners during the time when they were said to have left the place in connection with the treatment of the first petitioner. The paper publication of the summons is seen to have been effected in an evening daily which was unheard of hitherto.
8. A Division Bench of this Court in which one among us
(Anil K. Narendran, J.) was a party, had held in Mohammed Shameer v. T.P.Abdul Majeed [2022 (2) KHC 642] that all courts have to ensure that, where service of summons or notice is made by advertisement, it shall be made only in Newspapers having sufficient circulation in the locality concerned, and that advertisements made in Newspapers having limited circulation or published in evening only, will not satisfy the requirement of rule. Paragraph No.12 of the aforesaid decision reads as follows:
“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 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 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.”
9. Thus the courts in the State of Kerala were given specific
direction in the aforesaid decision to 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. As far as the present case is concerned, the paper publication effected in an evening Newspaper which is unknown hitherto, cannot be taken as substituted service as per the requirements of law.
10. That apart, a perusal of the relevant publication effected
in the said daily would reveal that the requisite particulars that are to be contained in a summons were conspicuously absent in the above court advertisement made by the respondent-plaintiff. The aforesaid advertisement contains the following matter, in addition to the names of the parties and the names of the lawyers representing the plaintiff.
“മേൽന്ᩘറിൽ പ്രതികൾ്ᨪു്ᩦ സേൻസ് രതി്ᨴുനട്ᩈുവാൻ കല്ിപ ്ᨴ് മേൽന്ᩘർ മകസ് 23.11.2015 തീയതി്ᨪ് വ്ᨴി്ᨾു്ᩦതാണെ്ᩐ വിവരം ഇതിനാൽ അറിയി്ᨴുണകാ്ᩦു്ᩐു.”
11. The above matter incorporated in the paper publication is
hopelessly insufficient in meeting the requirements of substituted service by way of paper publication as envisaged under Order V Rule 20 of the Code of Civil Procedure, 1908. The purpose of effecting paper publication of summons would be defeated if the publication made does not contain the requisite particulars of a summons as envisaged in the prescribed format in Appendix B Process No.2 of the Code of Civil Procedure, 1908. As far as the present case is concerned, the substituted service of summons effected by the respondent-plaintiff is manifestly defective due to the above reason as well.
12. Thus it is apparent from the discussions aforesaid that
there was no proper service of summons upon the defendants (petitioners herein) in O.S.No.137 of 2014 of the Sub Court, Chavakkad. Needless to say that the ex parte decree passed against the petitioners is liable to be set aside. However, taking into account of the hardships caused to the respondent-plaintiff due to procrastination of proceedings, we deem it appropriate to impose payment of costs Rs.25,000/- as a pre-condition for allowing this appeal.
In the result, the appeal is disposed of as follows:
(i) The impugned common order dated 19.09.2022 in
I.A.No.1 of 2020 and I.A.No.2 of 2020 in O.S.No.137 of 2020 of the Sub Court, Chavakkad is reversed, and the ex parte decree passed in the said suit set aside, subject to payment of costs to the tune of Rs.25,000/- (Rupees twenty five thousand only) by the petitioners to the respondent-plaintiff within three weeks from the date of receipt of a copy of this judgment.
(ii) The parties are directed to appear before the Sub Court,
Chavakkad on 08.04.2024, on which date, the learned Sub Judge shall proceed with the suit upon being convinced about the payment of costs by the petitioners-defendants as per the aforesaid direction.
(iii) Being a litigation of the year 2014, the learned Sub
Judge shall make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this
judgment.
Sd/- ANIL K. NARENDRAN, JUDGE Sd/- G. GIRISH, JUDGE jsr