SUDHIR RAMDAS SONAR Vs. FAKIR MOHAMMAD ABUBNAI MOMIN

JUDGEMENT

(1.) THE respondent No.1 herein filed the Regular Civil Suit No.18 of 1972, which came to be later on numbered as Regular Civil Suit No. 16 of 1981, against the petitioner herein and respondent Nos 2, 3 and 4. The suit was filed for specific performance of the agreement dated 14th May, 1969 in respect of the house property situated at Manchar. It was the case of the respondent No.1 that the father of this petitioner i.e. Ramdas had agreed to sell the same for an amount of Rs. 1700.00. Ramdas was the father of the petitioner and respondent No.2 herein. Respondent No.3 herein was the brother of Ramdas and Respondent No.4 was the wife of Ramdas. Respondent No.4 was sued as a guardian of the petitioner and the respondent No.2 who were minors. Ex-parte decree came to be passed on 13.4.1983. An application came to be filed on behalf of the petitioner herein and respondent No.2 for setting aside the said ex-parte decree on 13.12.1983. It was alleged in the said application that they came to know about the said decree on 11.12.1983 and even at that time they were minors. Though the respondent No.4 was then natural guardian, she was not served with the suit summons and they were having no knowledge whatsoever about the suit and the ex-parte decree. Therefore, there was sufficient or good cause for setting aside the same. The said application came to be opposed on behalf of the respondent No.1 inter alia contending that the application was not bonafide. The suit summons was served by publication of the notice to respondent No.4 in the newspaper Prabhat. The respondent No.3 appeared in the suit and knew about it. He has taken no steps. Therefore, it should be presumed that all the defendants i.e. petitioner and the respondents Nos. 2 to 4 were having knowledge of the ex-parte decree. It was, therefore, contended that there was no sufficient or good cause to set aside the ex-parte decree and the applicants i.e. the petitioner and respondent No.2 have failed to explain the delay in filing the application which was barred by limitation. The Courts below held that the application filed for setting aside the ex-parte decree was not within limitation and there was no sufficient cause for condonation of the same. The finding recorded by the II Additional District Judge, Pune on 22nd December, 1988 in Misc. Civil Appeal No.481 of 1986 is under challenge in this Revision.

(2.) THE learned Advocate for the petitioner submitted that there could have been no substituted service as contemplated by order 5 Rule 20 (1A) of the Code of Civil Procedure. He submitted that there could have been no order for service by advertisement in a newspaper unless the Court was satisfied that the defendant was keeping out of the way for the purpose of avoiding service, or that for any other reason the summons could not be served in the ordinary way. In this connection, he relied upon the Roznama of the trial Court. He further submitted that in view of Article 123 of the Limitation Act, 1963 as the applicants i.e. the petitioner or the respondents 2 and 4 were not knowing about the said ex-parte decree. The application as filed was within the limitation.

(3.) THE learned Advocate for the petitioner also invited my attention to Article 123 of the Limitation Act, 1963. The Explanation to Article 123 reads as under :- Explanation - For the purpose of this article, substituted service under rule 20 of Order V of the Code of /civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. Substituted service under Rule 20 of Order 5 of C.P.C. cannot be treated as due service for the purpose of this article. The applicants i.e. the petitioner and the respondent No.2 have alleged that they came to know about the passing of the ex-parte decree on 11.12.1983 and filed the application on 13.12.1983 i.e. within 30 days of getting the knowledge. Merely because respondent No.3 who happens to be a party defendant was served and was present in the Court cannot lead to the conclusion that the petitioner or the respondents Nos. 2 and 4 were aware about passing of the ex-parte decree. The respondent No.4 left Manchar and went to stay at a different place along with the minor sons i.e. petitioner and respondent No.2 after the death of her husband. Their relationship with Respondent No.3 is immaterial.