M/s. Jyoti Medlco Traders & Anr. v. QaTgiMedicoesAnr.

HIGH COURT OF CHHATTISOARH AT BILASPUR M.A. N0,78 of 2008 APPEaAANTS AEPUCANTS/ DCTEaiDANTS RESPONDBNIS NON-AI»PUCANT /PLAINTIFF

1. M/s.JyotiMedicoTraders,ETOp. P.R. Lalwani, S/o Ganesh Lal Lalwani, Shop No. 12, Medieal Gomplex, O.E. Raod, Raipur (CO) 2. P.R. Lalwani, aged 6d 1 years, S/o Ganesh Lal Lalwani, Prop. M/s Jyoti Medico Tratders, R/o 15/109, Jawahar Nagar, Raipur (CQ) Versus

1. Gar^ Medico

2. Krishna Kumar Kesharwani, aged 28 years, S/o K.P. Kesharwani, Pro. Gargi Medicos, Bus Stand Road, TeUpara, Bflaspiir (CO) MISC. APPEAL UNDER ORMat43 RU UDXXF &KC. (Sinid®Benck: Hon'ble Mr. N.1t AtSEumaI. J.) Present ; Shri Vipin Punjabi, Advocate for the appenants. Shri Anurag Dayal Stariyastava, Advocate, respondents. JUDGMBNT (Passedon 1$' dayoflfay, 2009) The instant miscellaneous appeal is dlrected ^atast the order dated'S9-^-2007 passed by the Addittonal Dlstrict Judge, BUaspur in unTc^istered case of 2007, whereby theapplicatlon under Section 5 of (he IJmitation Act filed ty fhe appcflant along with application under Order 9 Rule 13 of C.P.G. has been disinissedand consequently, fhe application for setting aside (he ex-parte decree under Order 9 Rtile 13 of C.P.C. stands dismissed. ^

2. Brief facts of Cfae case are ffaat fhe respondents filed a civU suit bearing Civil Suit No. 2-B/2006 against the ap^Uaats on 12-5-2006 for recovery of Rs. 7,72,864/-. As per the appellant, suminons af the suit was served up<Hi him on 27-6-2006 without serving upon him copy of plaint The notice shows fhe date of heariag fixed by the Coiirt as 28-6-2006 for appearance i.e. only a day after, when the summons was received. So there was no due servlce ofsummons uponhim. On 26-5-2007, whea f process server reached to the shop of fhe appellant No. 2 for execution of the deeree and attached fhe coniputer of his shop, then only, he came to know about fhe ex-parte decree. On 12-6- 2007, the appellant applied to obtain certified copy of entiire case, which was supplied to him on 21-6-2007 and-thereafter, he preferred (he instant application ator^ wlfli application for condonation of delay under Sectfon 5 of ffae Umitatton Act on 29-6-2007, but leamed tnal Court dlsimssed fhe appMcation fUedunder Section 5 ofthe UmitationAct, 1908 by the api»Uant by a ciyptic order and consequently, the application under Order 9 Rule 13 of C.P.C. stands dismissed. s'°ne

3. Shri Vipin Punjabi, leamed counsel far the appellants, subinitted that summons were not duly served upoii appeUants inasmuchas copy offhe plaint was not annexedwifh the notice, that too, was served a day before fhe date ofhearic^ fixed by the trial Court. Therefore, even such summoiis without copy of plaint was not served upon the appellant in due time and. fherefore. leamed trial Court coDunitted aa error in dismissing the application ffled by fheappeUanfc It was further submitted by leamed counsel for the appellants that tte application has beea ffled fi-om the date of knowledge and delay, if ary, caused in preferring the application to set aside the exparte order, is bonafide and deseryes to be condoned.

4. Per contra, Shri Anur^ Dayal Sbrivastava, leamed counsel appearii^; for the respondents submitted that appeUants failed to assign sufficient eause to condone the del^. Relymgon fhe decision of fhe Supreme Court in case of Sunll Poddar and othera -v- Uaton Bank of Indla reported m (2008) 2 SCC 326, he submitted that the legal position under ttie amended code is not whefher fhe defendant was artually seryed with the suinmons in accordance with the procedure laid down and in fhe manner prescribed ia Order 5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had siifficlait time to appear and answer tfae clatoi of the plaintiff. Onoe fhese two Gonditioos are satisfied, an ex-parte decree caiuiot be set aside even ifit 1s established that there was inSgularily in service of summons. If the Couut is convinced fhat fhe defendant had ofherwise knowledge of fhe proceedii^s and he could have appeared aad answered the platatififs claim, he cannot put forward a youndofnon-service of summons for setttag aside ex-parte decree passed agamst tum by involdng Rule 13 of Order 9 of C.P.C. He fiirtter subinitted that no sufficient case was shown to condone (he delay of 124 days and fherefore, the trial Coiut ri^itly dismissed the appllcation.

5. I heard fhe counsel for the parties, perused the record and also the order impugned.

6. On gomg throu^i the record.it is clear that the leamed tnal Coiirt had taken a vcry casual approach in passing the impugaed order. Even leamed Trial Court did not care to reg»ster the case. Record shows fhat neither reply was filed by the non-applicants nor any affidavit was filed in rebuttal to the applications filed under Order 9 Riile 13, C.P.C. and iinder Section 5 oftfae Lmutation Act ffled by the appellants and onty by obsenm^ that the delay of 124 days is not bonafide and case deserves to be dismlssed, the application has been dismtesed.

7. Hon'ble Supreme Court in case of OauIiaU ValvessAty -v- Nlharlal Bhattachaijee reported in (1995) 6 SCC 731 observed in para 6 as under:- "6 S is seen that though notice was serv^d on fhe ^.' appe^xrStan 28-5-1990 and the date ftxed far a^ieccrance was 29-5-1990, there was no time much less suffident, to reach the court far cyfpectrcmce on that dccte. WMe cidjoummg the swl to 19-7-1990, thescdd dccte was not communicctted to the dppellciht, as envisaged incdccuse (c) of Kule 6 ofOrder 9. TTms, the sumnwns was not duly served. The tan&dtfon began to run anly when fhe cyywltant had knawledge of the ex pccrte decree. From. tfve date of the knowledge, admcttedly, the cippUcation was fVed wfthat 30 days. The caurts belaw had not advertedtothis aspectftom this perspective.' K ^

8. Hon'ble Supreme Court in case a£ SudkU Kuaaar Sabharwal-v- Gurpreet Slng^i and otliera reported in (2002) 5 SCC 377 in paragraphs 10 and 11 observed as under:- '10. The leccmed caunsel for the respandent lcmdlord subrrdfted that there is cm, interptecider suit JQed by the appeUant becccuse there was a disputebetween theheirsof the origincil landlord who vnfortwtdtely died and his undow and the grandsons ftvho are the respondents herein), each of the two was clccanmg himself to be ffie kmdlord and entttled to recouer rent, each setting up a unll in his favaur. The appellant has cidrmttedintheptcant therem ffiathewas awccre ofthe pendencyofthe swtJQedbythe respondent tn the Cbitrt of the Rent ContraQer, Anaitsccr. 6t fact, adTrossion of the cppellcmt has weighed heca/Sy with the High Caurt, u/hich has opined that even. ythesummons was not duly served, the cippeUant was awcve qf fhe pendency thsrefore, the dfyjlicatian under Order 9 qf the suit and, Rule 13 CPCdidnoit haveany msnt. ' . . • • • " . ... -^"'"s:. 27ie High Court has auertooked the second pnwiso to 11. Rule 13 of Order 9 CPC, added by thel976 Amendment wlvchprowdes that no pBwt^wiHset cisidea decree pas^sd ex ^arte merely on the ground. that there has been an irregulcaity in the servioe ofsummans ifitis scitisfied that ttie defendant had nottce of the date cfheccrmg cmd had suffkdent time to appear and answer the plcdn^'s ctalm. S fe the knawledge of the 'dccbe of hecaing' cmd not the knawledge of 'pendency afsutt* u'huA is relevant for fhe pwpose of the proviso abovescdd. Then the present one is rwtacaseofmere irregulcirityinservioeofswnraons; withe facts itis a case of non-^ennce qfswramms. The appettsatt has appeared m the vntness bax and we have ceirefutly perused his stdtement. There is no cross-excmwwction 6 directed tawccrds discredttwig the testtmony on occth ofthe appeUant, that is, todrcau an interfsrenoe that theappeUcmt had in. any manner anotice ofthe date of hecaing cavelhad suffident time to appeccr ca^. answer ^ve plainttff's cta»n wludflse did not avcdl andutilise. 9^ Applying the ratfo laid down by theSupreme Court in (he aforesaid cases in fhe facts and circumstaiices of the present case, it is clear that summons were not duly served upon fhe appellants masmuch as the siiit posted for appearance on 28-6- 2006, but suium.ons served on the appellant on 27-6-2006 - there belng no time much less siifficient time, to reach the Court 1 for appearanceon fhat date, the suit adjoumed to 6-7-2006, but the date was not communicated to fhe appellant as envisaged in Rule 6 (c) of Qrder 9 of the Code, Chus the summons was not duly senred. Judgment in case of Sushll Kumar (supra) therefore clearly conies in his rescue as no time much less sufBcient, to reach Court for appearance on fhat date was available to the appellant The jtulgment relied upon by fhe respondents also helps tte appellant --.^•^;,

10. As per Article 123 of the Lunitation Act, 1908, limitation would run fi-om the date of knowledge of fhe decree and for that also, vague knowledge is no knowledge and therefore, leamed trial Court oi^ht to have coiisldered fhis aspect ofthe matter. But adopting pedantic and byper techiucal approach, the trial Court dismlssed the appBcation filed by fhe appeUants under Section 5 of the Lunitation Act, which has resulted in complete failure ofjustice. Thus, the impugaed order is perverse and deserves to be setaside.

11. In the result, the appeal is aUowed. The impiigned order dated 29-8-200^7 is set aside and delay, if any, eaused m prefemng the application under Qrder 9 Rule 13, G.P.C. condoned. The ex partejudgment and decree passed In Civll Suit No. 2-B/2006 dated 22-1-2007 isset aside as the appeUaat has succeeded in showing sufficient cause for his absence on tfae date of appearance Le. 28-6-2006 and the said civil suit is restored to its ffle. The parttes shall appear before fhe trial Court on 22-6-2009. The trial Court shall further proceed wifh the suit in accordance wife law from fhe stage as e?dsted on 6-7-2006 and shall dispose offhe same as earlyas possible. Sd/- N.K. Agrawal Judge ''*^?.'.