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Monday, December 23, 2013

Sec. 5 delay of Limitation Act - 488 days delay in filing or.9 rule 13 C.P.C. petition-to set aside exparte decree - summons not served personally - admitted principal amount - High court allowed the petition as admittedly as the summons were not served paper publication was filed - directed the party to deposit Rs.50000/- in E.P. as admitted by him as debt - directing the Dhr receive the same on security = Pattan Nazimunnisa Begum @ Nazimunnisa...... Petitioner Shaik Hamidunnisa...... Respondent = published in judis.nic.in/judis_andhra/filename=10599

Sec. 5 delay of  Limitation Act - 488 days delay in filing or.9 rule 13 C.P.C. petition-to set aside exparte decree - summons not served personally - admitted principal amount - High court allowed the petition as admittedly as the summons were not served paper publication was filed - directed the party to deposit Rs.50000/- in E.P. as admitted by him as debt - directing the Dhr receive the same on security =
an ex parte decree was passed.  
After receiving notice in the
Execution Petition, the petitioner filed a petition to set aside the ex parte
decree and as there was a delay of 488 days in filling the said petition, she
filed I.A.No.1250 of 2001 to condone the delay of 488 days. =
Order V Rule 20 is as follows:
20. Substituted service:-
(1) Where the Court is satisfied that there is reason to believe that the
defendant is keeping out of the way for the purpose of avoiding service, or that
for any other reason the summons cannot be served in the ordinary way, the Court
shall order the summons cannot be served in the ordinary way, the Court shall
order the summons to be served by affixing a copy thereof in some conspicuous
place in the court-house, and also upon some conspicuous part of the house [if
any] in which the defendant is known to have last resided or carried on business
or personally worked for gain or in such other manner as the Court thinks fit.
(1A) 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.] Effect of substituted service.
..............................
8.      There cannot be any doubt that substitute service shall be a sufficient
service in ordinary circumstances.  But before that, the Court must be careful
to see that conditions enumerated in Order V Rule 20(1) have been strictly
complied with.  In most of the cases, publications by an advertisement in a
newspaper would be a futile exercise because such publications are being made in
daily newspapers having no wide circulation in the area, in which the defendant
is actually residing or earlier resided.  Moreover, the illiterate or ignorant
persons may not have access to the newspapers.  It is a ground reality that only
few educated persons subscribe daily news papers and most of the readers are not
bothered about the Court notices.  Therefore, unless the Court is satisfied that
the defendant is keeping out of the way for the purpose of avoiding service or
that the summons cannot be served in the ordinary way, the Courts should not
order substitute service by way of paper publication.  It appears that after
exhausting all other modes of service as contemplated under Order V Rule 20(1)
C.P.C, the Court should resort to service by an advertisement in a news paper
under Order V Rule 20(1A) C.P.C. 
9.      Therefore, whenever a defendant complains that there is no service of
summons on him, the Court should examine all the facts and circumstances and  
come to a just conclusion.
10.     Having regard to the facts and circumstances of the case, the Civil
Revision Petition is allowed on a condition of the petitioner depositing an
amount of Rs.50,000/- to the credit of the Execution Petition in the lower
Court, within 60 days from the date of receipt of a copy of this order and on
such deposit, the respondent/D.H.R shall be permitted to withdraw the same on
furnishing sufficient surety.
11.     With the above observation, the Civil Revision Petition is allowed.  No
order as to costs.  Miscellaneous petitions, pending if any in this Civil
Revision Petition shall stand closed.

HON'BLE SRI JUSTICE B.CHANDRA KUMAR        

CIVIL REVISION PETITION No.656 of 2013  

20-11-2013

Pattan Nazimunnisa Begum @ Nazimunnisa...... Petitioner

Shaik Hamidunnisa...... Respondent


Counsel for the petitioner:Sri K. Venkatesh

Counsel for the respondent: Sri P.L.V. Prasad

<Gist:

>Head Note:

?Cases referred:  Nil.

HON'BLE SRI JUSTICE B. CHANDRA KUMAR        

CIVIL REVISION PETITION No.656 of 2013  

O R D E R
This Civil Revision Petition is directed against the order dated 27.9.2012 in
I.A.No.1250 of 2011 in O.S.No.580 of 2009 passed by the learned I Additional
Senior Civil Judge, Nellore.
2.      The brief facts of the case are as follows:
The petitioner herein is the defendant in O.S.No.580 of 2009.  The respondent
herein filed the said suit alleging that the petitioner has borrowed an amount
of Rs.50,000/- from her on 7.10.2006 and executed a demand promissory note in 
her favour agreeing to repay the same with interest at 24% p.a.  It is also
alleged that the petitioner has borrowed another sum of Rs.1,20,000/- from the
respondent on 25.3.2007 and executed a demand promissory note agreeing to repay  
the said amount with 18% p.a.  Alleging that the petitioner failed to repay the
same, the respondent filed the suit for recovery of Rs.2,60,160/-.
3.      It appears that in the said suit, the summons were not served on the
petitioner.  Then, publication of notice in Daily newspaper by way of substitute
service was ordered and as the petitioner did not appear in spite of publication
of notice in daily newspaper, she was set
ex parte and an ex parte decree was passed.  
After receiving notice in the
Execution Petition, the petitioner filed a petition to set aside the ex parte
decree and as there was a delay of 488 days in filling the said petition, she
filed I.A.No.1250 of 2001 to condone the delay of 488 days.
4.      The specific case of the petitioner herein is that no summons were served
on her. It is also her case that the respondent had lent Rs.50,000/- to her and
then, she entered into an agreement that she would let out one portion of the
house to the respondent without rent and the respondent would not charge any
interest on the amount of Rs.50,000/- borrowed by her.  It is also alleged that
except borrowing Rs.50,000/-, she did not borrow any other amount from the
respondent and that the respondent has suppressed the written understanding
between the parties.  The lower Court came to the conclusion that substitute
service of summons by way of paper publication is also a proper service of the
summons to the parties and when there is proper service, it is for the
petitioner to explain the delay and that there is no proper explanation to
condone the delay of 488 days in filing the set aside petition.
5.      The only point that arise for consideration is whether the impugned order
is sustainable?
6.      Admittedly, summons were not served on the petitioner in O.S.No.580 of
2009 and the respondent applied for substitute service by way of publication of
summons in a daily newspaper.  Of course, it is not in dispute that the summons
have been published in a daily newspaper calling upon the petitioner to appear
before the Court on a particular day and that the petitioner failed to appear
before the lower Court.  It is not clear in which daily newspaper, the summons
were published.  Normally, in case of substitute service, the Court must be
satisfied that there is a reason to believe that the defendant is keeping out of
the way for the purpose of avoiding service and the order of service by an
advertisement in a newspaper shall be made in a daily newspaper having
circulation in the locality, in which the defendant has last known to have
actually or voluntarily resided or carried on business or personally worked for
gain.



7.      Order V Rule 20 is as follows:
20. Substituted service:-
(1) Where the Court is satisfied that there is reason to believe that the
defendant is keeping out of the way for the purpose of avoiding service, or that
for any other reason the summons cannot be served in the ordinary way, the Court
shall order the summons cannot be served in the ordinary way, the Court shall
order the summons to be served by affixing a copy thereof in some conspicuous
place in the court-house, and also upon some conspicuous part of the house [if
any] in which the defendant is known to have last resided or carried on business
or personally worked for gain or in such other manner as the Court thinks fit.
(1A) 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.] Effect of substituted service.
..............................
8.      There cannot be any doubt that substitute service shall be a sufficient
service in ordinary circumstances.  But before that, the Court must be careful
to see that conditions enumerated in Order V Rule 20(1) have been strictly
complied with.  In most of the cases, publications by an advertisement in a
newspaper would be a futile exercise because such publications are being made in
daily newspapers having no wide circulation in the area, in which the defendant
is actually residing or earlier resided.  Moreover, the illiterate or ignorant
persons may not have access to the newspapers.  It is a ground reality that only
few educated persons subscribe daily news papers and most of the readers are not
bothered about the Court notices.  Therefore, unless the Court is satisfied that
the defendant is keeping out of the way for the purpose of avoiding service or
that the summons cannot be served in the ordinary way, the Courts should not
order substitute service by way of paper publication.  It appears that after
exhausting all other modes of service as contemplated under Order V Rule 20(1)
C.P.C, the Court should resort to service by an advertisement in a news paper
under Order V Rule 20(1A) C.P.C. 
9.      Therefore, whenever a defendant complains that there is no service of
summons on him, the Court should examine all the facts and circumstances and  
come to a just conclusion.
10.     Having regard to the facts and circumstances of the case, the Civil
Revision Petition is allowed on a condition of the petitioner depositing an
amount of Rs.50,000/- to the credit of the Execution Petition in the lower
Court, within 60 days from the date of receipt of a copy of this order and on
such deposit, the respondent/D.H.R shall be permitted to withdraw the same on
furnishing sufficient surety.
11.     With the above observation, the Civil Revision Petition is allowed.  No
order as to costs.  Miscellaneous petitions, pending if any in this Civil
Revision Petition shall stand closed.

_____________________  
B. CHANDRA KUMAR, J    
Date: 20.11.2013

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