The High Court · 2025

Petition under Section '1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the proceedings of the court of the Vl ADDITIONAL DISTRICT R. R. DISTRICT. AT KUKATPALLY IN OS NO.347l2018 DATED 3OTH JANUARY 2019. Counsel for the Appellants: Sri J. C. Francis Counsel for the Respondents: Ms. Jyothisri Vankina The Court delivered the following JUDGMENT: THE HC)N,BLE SRIJUSTTCE P. SAM KOSHY AND THE HON'BLE SRI JUSTICE N. TUKARAMJI ctvlL. MlscE LLANEOUS APPEAL N0.629 0F 2023 JUDGMENT: (F>er Hon'ble Sti Juslice N. Tukanmii) This appesl has been filed under Order 43 Rule 1(D) of Civil Procedure Code, 1908 (for short, the'CPC') challenging the order dated 29.09.2023 in 1.A.No.259 of 2O2O in O'S'No'347 of 2018 on thefileoftherVlAdditionalDistric,RangaReddyDistrictat Kukatpally.

2. Heard Nlr.J.C.Francis, learned counsel for the appellants and Ms.Jyothisri Vankina, learned counsel for the respondent'

3.Therele,vantfactsinbriefarethattherespondentasplaintiff filed the suit'tor recovery of an amount of Rs.53,47,323/- with interest at 18ot'o per annum under Order 37 Rule 1(2) and Rule 2 r/w Section 1ti1 of CPC. ln the suit proceedings on service of summons as the appellants/ defendants remained absent' by setting thenr ex pafte decree was passed on 3001'2019' Subsequently, upon receipt of notice in E.P'No 631 of 2019 on the file of the V Additional District and Sessions Judge, Mysore, the appellants preferred interlocutory applications vide l A No 258 of I ! 2 PSKJ&NTRI Cma 629 m23 20201or condonation of delay of 326 days and 1.A.No.259 oI2020 is filed under Order IX Rule 13 of CPC for setting aside the ex pafte decree dated 30.01.2019. After due enquiry, the trial Court had passed the impugned order in 1.A.No.259 of 2O2O dismissing the petition with costs. Thus the appeal.

4. Learned counsel for the appellants would contend that as the summary suit was instituted by the respondent under Order 37 of CPC the petition for setting aside the decree should have been filed under Rule 4 of Order 37 of CPC. Nonetheless, due to ill- advice, the appellants preferred petition for setting aside the ex parfe decree under Order 9 Rule 13 of CPC and the petition under Section 5 of the Limitation Act for condonation of delay in filing such application, which is otherwise inessential. He further pleads that the ex pafte proceedings were taken up by the trial Court on the ground of proper service of notice. As per the materials and observations of the trial Court the summons on the appellant No-2 was served and received by the son of the appellants on

07.06.20'18 at the Mysore address and this fact itself is explicating that there was no proper service, more particularly, in the light of Rule 3(2)of Order 37 of CPC. ln addition, he got a substantial case in regard to jurisdiction of the Court which could be taken up J PSKJ&\TRJ C na 629 2023 once the suit irs revived. Therefore, considering the aspect of improper servict-' of summons prayed for setting aside the ex parte decree, by allcrirring this appeal.

5. Learned r;ounsel for the respondent would submit that in the suit the summons were sent to the appellants' address at lVlysore and admittedly it was received by their son with an endorsement of his phone number. This fact itself is proof of proper service of summonses. Flowever, as the appellants chose to remain silent, the trial Court by appreciating the materials passed the judgment' Furthermore, the interpretation of Rule 3(2) of Section 37 of CPC by the appellants is erroneous and the provisions prescribes for presumption r:f proper service of notice, unless it is otherwise ordered. As sr.rch the appellants failed to make out any tenable ground for in!:rference. That apart, the appellants filed two interlocutory applications i.e. for condonation of delay' and for setting aside ltrc ex parte decree but unsuitably the appeal was filed only against one of the orders. Hence, in the absence of any valid ground, prayed for dismissal of the appeal.

6. We have: perused the materials on record and considered the submissions of the learned counsel. 4 PSKJ&NTR' Cna 629 2023

7. At the outset, admittedly the appellants had filed two interlocutory applications i.e. one for condonation of delay and the other for setting aside the ex parfe judgment. Though quoted wrong provision and counted delay as the petition was considered by the Court and passed orders on merits, in the judicial discipline, the appellants should have also challenged that order.

8. Be that as it may, Rule 4 of the Order 37 of CPC is investing power in the Court to set aside the decree under special circumstances and there is no specification as to period of limitation either in CPC or in the Limitation Act. ln effect, as pleaded by the appellants a specific application seeking condonation of delay may not be required. Nonetheless, while explaining the peculiar circumstances for setting aside the ex pade decree the petitioners are supposed to discharge the onus in explaining the circumstances including the delay.

9. The Hon'ble Apex Court while considering a similar circumstance has summarized the principles in exercising the power in setting aside the ex pafte decree in an authority dictum between Mahesh Kumar Joshi v Madan Singh Negi - (201 5) 12 SCC 254 wherein held that, when the defendant can make out a debatable case showing pima facie that injustice nas napperred,- 5 PSKJ&NTRJ t:na 629 X)23 the ex pafte t)ercree can be set aside by imposing appropriate conditions to balance the equities. lt has been clarified that the meaning of 'spelcial circumstances' depends upon the facts and circumstances of the respective case.

10. ln this position, without dwelling into the procedural irregularity in filing the impugned petition for condonation of the delay under distinct provision of law, we propose to examine the circumstances prleaded by the appellants to find out in making out any favourable case.

11. The sole contest of the appellants is that the summonses were not properly served as the summonses were received by the son of the appellants. A careful reading of Sub-rule 2 of Rule 3 is making out that if the summonses, notices and other judicial processes whiclr are to be served on the defendants, left for such service, shall be deemed to have been duly served' unless it is otherwise ordered by the Court. Further this provision is also in consonance with Section 27 of the General Clauses Act, 1897. ln the present case, the appellants are not disputing the address and receipt of sumnronses by their son. ln such position, as per the aforementioned provision the Court shall presume proper service of notice. Therefore, natural corollary is even after proper service 6 PSKJ&NTRJ Cma 629 2023 of summonses the appellants chose to remain sirent. Thereupon, the trial Court proceeding with the matter ex pafteby setting aside the appellants is perfecfly justified. As the proposed circumstances is falling short to make out ,special circumstance, for setting aside the decree, we are of the considered view that the Court below had properly considered the pleadings and materiar and justified in dismissing the prayer for sefting aside the ex paftedecree. 12. Resultanfly, for want of merit accordingly liable to be dismissed. this appeal fails and is 13 ln the result, the civil miscellaneous appeal is dismissed There shall be no order as to costs. As a sequel, pending miscellaneous petitions if any, stands closed //TRUE COPYII Sd/- M. VIJAYA BHASKER JOINT REGISTRAR To, sEcTto OFFICER l. 5i:Ed#Uiiito,U',", R.R.District, at Kukatpaly.(with records. ir any) e qilcc .., M;:;i,i!?,i"";flflfi1'i"L?t 8rrq 4. Two CD Copies i) ,n{W - VHiPR e{Xe<@=!l;- /Aq a/-' !{ 1i- t S?.,r , c) 0 \ \i HIGH COURT DATED: 2710112025 JUDGMENT CMA.No.629 ot 2023 DISMISSING THE CMA (/- \dt \'<- )