JOSEPH Vs. KUNJAN

JUDGEMENT

(1.) THE matter was taken up in appeal to the learned subordinate Judge of Meenachil who agreed with the Munsiff that summons was served on 29-10-53. In the summons the first hearing was fixed for 12-11-53 and as sufficient number of days had not expired the court adjourned the case for appearance of the defendant to 21-11-53. On 21-11-53 as there was no sitting the case was adjourned to 30-11-53. Admittedly no notice of the adjourned date was given to the defendant, as provided in R. 6 (i ) (c)of 0. 9 CPC. He, therefore found that there was no proper service and since there was no proper service of summons the defendant could rely on the knowledge of the decree for filing the application and since the petition was filed within 30 days of the date of knowledge, the petition was within time and on that ground be reversed the order of the Munsiff and set aside the exparte decree. THE revision is filed against the aforesaid order.

(2.) UNDER 0. 9, R. 13 if the defendant satisfied the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing,. the court shall make an order setting aside the decree as against him. It is clear that the provisions of 0. 9 R. 6 (1 ) (c) and the provision for sufficient time to be provided for the appearance of the defendant are mandatory. If that be so, the service will not be proper and that by itself would be a sufficient cause for non-appearance.

(3.) THIS was the view taken by Vaidialingam , j. , in V. Damodaran v. State (1959 KLT. 1157) The head-note reads as follows: - "the Court has absolutely no jurisdiction to adopt a course contrary to the mandatory provision of R. 67 of the T-C. Civil Rules of Practice. In the absence of compliance of the mandatory provision contained in R. 67, Civil Rules of Practice, it cannot be said that there has been a proper service of summons in this case in accordance with R. 67. The State was perfectly right in relying upon knowledge of the decree for filing the application"