Andhra Pradesh High Court – Amravati
M/S.Sea Coast Logistics & Marine vs Roman Catholic Mission on 9 January, 2025
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
*THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
+ CIVIL REVISION PETITION NO: 2750 OF 2024
% 09.01.2025
# M/s.Sea Coast Logistics & Marine
and others
......Petitioners
And:
$ M/s. TGV SRAAC Ltd.,
....Respondent.
!Counsel for the petitioners : Sri Tagore Yadav Yaragorla
^Counsel for the respondent : Ms. G.K.V.D.Kumari
Head Note:
? Cases referred:
1. 2009 (3) ShimLC 139
2. MANU /PH/0470/2022
3. 2021 SCC Online TS 82
4. (2016) 02 AHC CK 0025
5. 2024 (3) ALD 126 (SC)
6. 2022 (2) RCR (Civil) 319
7. (2023) 10 SCC 531
8. 2014 (1) ABR 235
9. (1980) 1 SCC 258
10. 1972 3 SCC 156
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CIVIL REVISION PETITION NO: 2750 OF 2024
DATE OF JUDGMENT PRONOUNCED: 09.01.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No
copy of the Judgment?
____________________
RAVI NATH TILHARI,J
_______________________
CHALLA GUNARANJAN,J
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
CIVIL REVISION PETITION NO: 2750 of 2024
ORDER :
(per Hon’ble Sri Justice Ravi Nath Tilhari)
Heard Sri Tagore Yadav Yaragorla, learned counsel appearing for the
petitioners and Ms.Hema Bindhu Karuturi, learned counsel representing
Ms.G.K.V.D. Kumari, learned counsel for the respondent.
2. This Civil Revision Petition has been filed under Section 115
of the Code of Civil Procedure, 1908 (in short ‘CPC’) by the defendants
being aggrieved from the order, dated 30.09.2024, passed in I.A.No.40 of
2024 in C.O.S.No.8 of 2021 (in short ‘COS’) on the file of the Court of the
learned Special Judge for Trial & Disposal of Commercial Disputes,
Vijayawada (in short ‘the Special Judge’), dismissing their application filed
under Section 5 of the Limitation Act,1963,for condonation of delay of 464
days in filing the petition under Order 9 Rule 13 CPC, to set aside the
exparte decree dated 18.11.2022 in C.O.S.No.8 of 2021.
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
3. The plaintiff/respondent-M/s. TGV SRAAC Ltd., (formerly
Rayalseema Alkalies and Allied Chemicals Limited) filed C.O.S.No.8 of
2021 for recovery of an amount of Rs.1,31,31,621/- being the outstanding
amount due from the petitioners/defendants along with accrued interest
and for some other reliefs. The suit was decreed exparte on 18.11.2022.
The point for consideration as framed in the suit was answered in favour of
the plaintiff/respondent. The learned Special Judge recorded in the
judgment that the defendants 1 to 3 (petitioners 1 to 3) received the suit
summons through registered post. But, they did not appear, even though
the matter was posted for their appearance on 17.9.2021, 05.10.2021 and
02.11.2021. The petitioners/defendants 1 to 3 were set exparte on
02.11.2021. For defendant No.4 (petitioner No.4), it was recorded that he
received the suit summons through the Court on 12.05.2022. But, he also
failed to appear on 14.06.2022, 28.06.2022 and on 01.07.2022. He was
also set exparte on 01.07.2022. The suit, as such, proceeded exparte and
was decreed exparte on 18.11.2022, directing the defendants 1 to 4 to pay
the plaintiff-company, the suit amount with subsequent interest @ 18%
from the date of filing of the suit till the date of the decree and thereafter,
@ 12% per annum from the date of the decree till the date of realization of
the outstanding balance due amount.
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
4. The plaintiff/respondent filed E.P.No.477 of 2023 for
execution of the decree, in the City Civil Courts, at Ahmadabad. The
defendants/judgment debtors were served on the execution petition. They
put in appearance on 17.01.2024. Thereafter, on 26.04.2024, they
filed I.A.No.40 of 2024 under Section 5 of the Indian Limitation Act,1963 to
condone the delay of 464 days, in filing the application under Order 9
Rule13 CPC for setting aside the exparte decree, dated 18.11.2022.
5. The main plea of the defendants/petitioners was that they did
not receive summons of the suit from the Court and got knowledge of
passing of the exparte decree when they received notices in E.P.No.477 of
2023, just before the start of second wave of COVID. They requested to
condone the delay and accept the petition under Order 9 Rule 13 CPC.
6. The plaintiff/respondent objected, inter alia, on the ground
that there were no bonafides and no sufficient cause. Inspite of service of
summons, the defendants filed the petition after long delay of 464 days,
which could not be condoned.
7. The learned Special Judge, by order, dated 30.09.2024
rejected I.A.No.40 of 2024. It recorded that the summons was served to
the defendants 1 to 3 on 07.09.2021. The Court did not set them exparte
on that day, and posted the matter to 05.10.2021. On that day also, they
were not set exparte and the matter was posed to 02.11.2021. On
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
02.11.2021, the defendants 1 to 3 were set exparte. The defendant No.4
received the suit summons through the Court on 12.05.2022, and after few
days, he was also set exparte on 22.07.2022. Finally, the exparte
judgment and decree was passed on 18.11.2022. The learned Special
Judge recorded that the addresses of the defendants mentioned in the
plaint and on the summons of the suit were one and the same and further,
that the notices in the E.P., which were admittedly served to the
defendants, were on the same address. The leaned Special Judge held
that thus the summons of the suit were served to the defendants 1 to 3
and the Defendant No.4 was also served through the Court. The
defendants/petitioners failed to explain the delay of 464 days. The cause
was no ‘sufficient cause’ to condone the delay to set aside the exparte
decree.
8. Learned counsel for the petitioners submitted that the
defendants/petitioners 1 to 3 were not duly served. He submitted that he
is not disputing the service of the registered post summons in C.O.S., But,
there was no due service. Consequently the cause shown for
non-appearance of the petitioners 1 to 3 was sufficient and the exparte
decree deserved to be set aside after condoning the delay by allowing
I.A.No.40 of 2024. Explaining, the argument of ‘No due service’ he
submitted that the defendants/petitioners 1 to 3 resided outside the
jurisdiction of the Special Court at Vijayawada, where the suit was
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
instituted. The defendants 1 to 3 resided in Gujarat. As per Order V Rule
9(4) CPC, notice could not be sent by the registered post with
acknowledgment due. The provisions of Order V Rule 21 CPC were
attracted, but were not followed. As per Rule 21, the summons should
have been sent to the Court, having jurisdiction in the place where the
defendants 1 to 3 resided. Then, as per Rule 23, such Court should have
proceeded to serve the summons, as if the summons had been issued by
that Court. This procedure was not followed for the defendants 1 to 3, so,
there was no due service of summons.
9. Based on the aforesaid submission, learned counsel for the
petitioners further submitted that the provisions of Article 123 of the
Limitation Act, got attracted and the period of limitation to file an
application under Order 9 Rule13 CPC would be 90 days from the date of
acquiring knowledge of the exparte decree. The defendants acquired
knowledge of exparte decree on receipt of the summons from the
Execution Court. The period of limitation, when counted from that date,
there was delay of only 90 days, and not 464 days. The delay deserved to
be condoned, to provide opportunity of hearing to the petitioners.
10. Learned counsel for the petitioners, placed reliance in the
following cases:
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
1. Aar Kay Traders V. Satish Electronics1
2. M/s Paras Ram Milkhi Ram V. Sudarshan Tea. Pvt. Ltd.
And Another2
3. Ameena Begum V. Koushik Coop Housing Society and
Another3.
4.Chunni Lal and Others V. Mitrapal @ Babua4, which is an
interim order.
11. Learned counsel for the respondent/plaintiff submitted that
there is no illegality in the order of rejection of application for condonation
of delay. She submitted that there was no sufficient cause for condonation
of delay. There was an inordinate delay of 464 days. The exparte decree
was passed after setting the defendants exparte, and after the defendants
1 to 3 were served with the notices of C.O.S., through registered post
acknowledgment due, and the defendant No.4 was also served through
the Court. The plea of the petitioners’ that the summons were not served
was not accepted by the learned Special Court.
12. Learned counsel for the respondent next submitted that once
the summons were served, the period of limitation to file application to set
aside exparte decree would be 30 days from the date of the decree. There
1
2009 (3) ShimLC 139
2
MANU /PH/0470/2022
3
2021 SCC Online TS 82
4
(2016) 02 AHC CK 0025
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
was a delay of 464 days. The 30 days period from the date of knowledge
of the decree, as in the case of summons or notice was not duly served,
was not attracted. She further submitted that under Order 9 Rule 13, the
second Proviso, even an irregularity in service of summons would not be
ground to set aside an exparte decree, if the defendants had notice of the
date of the hearing and sufficient time to appear and contest the plaintiff’s
claim.
13. Learned counsel for the respondent placed reliance in the
following judgments :
1. Pathapati Subba Reddy (Died) the LRs., and others V.
Special Deputy Collector. (LA)5.
2. Lingeswaran and Others V. Thirunagalingam6
3. Sheo Raj Singh (Deceased) through LRs., and others V.
Union of India (UOI) and others7
4. Popat Bahiru Govardhane and others V. Special Land
Acquisition Officer and others8
14. We have considered the aforesaid submissions and perused
the material on record.
15. The following points arise for our consideration :
5
2024 (3) ALD 126 (SC)
6
2022 (2) RCR (Civil) 319
7
(2023) 10 SCC 531
8
2014 (1) ABR 235
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
1. Whether there was a sufficient
cause for condonation of delay in filing the
application for setting aside the exparte
decree under Order 9 Rule 13 CPC ?
2. Whether the judgment, dated
30.09.2024 of the learned Special Judge,
impugned in the Civil Revision petition
calls for interference in the exercise of the
revisional jurisdiction under Section 115
CPC?
POINT No.1 :-
16. Learned counsel for the petitioners confined his submissions
to’no due service of the summons’ on the defendants 1 to 3. He admitted
that the summons sent through registered post acknowledgment due were
served at the address, mentioned, but he added that it was no due service.
His submission is that the defendants 1 to 3 reside outside the jurisdiction
of the Court, where the COS was instituted. So, relying on Order 5 Rule
9(4) and Rule 21 CPC, he submitted that the summons were not served as
per law. With respect to the defendant No.4, he did not dispute that the
summons was served through Court.
17. Section 28 CPC reads as under :
“28. Service of summons where defendant resides in another
State :
(RNT &CGR,J)
C.R.P.No.2750 of 2024)(1) A summons may be sent for service in another State
to such Court and in such manner as may be prescribed
by rules in force in that State
(2) The Court to which such summons is sent shall, upon
receipt thereof, proceed as if it had been issued by such
Court and shall then return the summons to the Court of
issue together with the record (if any) of its proceedings
with regard thereto.
(3) Where the language of the summons sent for service
in another State is different from the language of the
record referred to in sub- section (2), a translation of the
record,?
(a) in Hindi, where the language of the Court issuing the
summons is Hindi, or
(b) in Hindi or English where the language of such record
is other than Hindi or English, shall also be sent together
with the record sent under that sub-section].”
18. The manner is prescribed under Order 5 Rule 9 CPC reads
as under :
“9. Delivery or transmission of summons for service. –
(1) Where the defendant resides within the jurisdiction
of the Court in which the suit is instituted, or has an
agent resident within that jurisdiction who is
empowered to accept the service of the summons, the
summons shall, unless the Court otherwise directs, be
delivered or sent to the proper officer to be served by
him or one of his subordinates or to such courier
services as are approved by the Court.
(2) The proper officer may be an officer of a Court other
than that in which the suit is instituted, and, where he
(RNT &CGR,J)
C.R.P.No.2750 of 2024)is such an officer, the summons may be sent to him by
post or in such other manner as the Court may direct.
(3) The services of summons may be made by delivering
or transmitting a copy thereof by registered post
acknowledgment due, addressed to the defendant or his
agent empowered to accept the service or by speed post
or by such courier services as are approved by the High
Court or by the Court referred to in sub-rule (!) or by
any other means of transmission of documents
(including fax message or electronic mail service)
provided by the rules made by the High Court:
(4) Notwithstanding anything contained in sub-rule
(1), where a defendant resides outside the
jurisdiction of the Court in which the suit is
instituted, and the Court directs that the service of
summons on that defendant may be made by such
mode of service of summons as is referred to in sub-
rule (3)(except by registered post acknowledgment
due), the provisions of rule 21 shall not apply.
(5) When an acknowledgment or any other receipt
purporting to be signed by the defendant or his agent is
received by the Court or postal article containing the
summons is received back by the Court with an
endorsement purporting to have been made by a postal
employee or by any person authorized by the courier
service to the effect that the defendant or his agent had
refused to take delivery of the postal article containing
the summons or had refused to accept the summons by
any other means specified in sub-rule (3) when tendered
or transmitted to him, the Court issuing the summons
(RNT &CGR,J)
C.R.P.No.2750 of 2024)shall declare that the summons had been duly served on
the defendant:
Provided that where the summons was properly
addressed, pre-paid and duly sent by registered post
acknowledgment due, the declaration referred to in this
sub-rule shall be made notwithstanding the fact that the
acknowledgment having been lost or mislaid, or for nay
other reason, has not been received by the Court within
thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case
may be, shall prepare a panel or courier agencies for the
purposes of sub-rule (1).”
19. The Order 5 Rule 21 CPC reads as under :
“21. Service of summons where defendant
resides within jurisdiction of another Court. -A
summons may sent by the Court by which it is issued, whether
within or without the State, either by one of its officers or by
post to any Court (not being the High Court) having jurisdiction
in the place where the defendant resides.”
20. Order V Rule 9(1) CPC provides for service of summons
where the defendant resides within the jurisdiction of the Court in which
the suit is instituted or has an agent resident within that jurisdiction, who is
empowered to receive summons. A bare reading of sub-rule (3) of Rule 9
Order 5 CPC shows that the service of summons may be made by
delivering or transmitting a copy thereof by registered post
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
acknowledgment due, addressed to the defendant or his agent
empowered to accept the service or by speed post or by such courier
services as are approved by the High Court or by the Court referred to in
sub-rule (1) or by any other means of transmission of documents
(including fax message or electronic mail service) provided by the rules
made by the High Court. So, service of summons by the mode of
registered post acknowledgment due is one of the modes of service. The
defendants/petitioners reside outside the jurisdiction of the Court, where
COS was instituted. Sub-rule (4) of Rule 9, Order 5 CPC, provides that
where a defendant resides outside the jurisdiction of the Court in which the
suit is instituted, and the Court directs that the service of summons on that
defendant may be made by such mode of service of summons as is
referred to in sub-rule (3), except by registered post acknowledgment due,
the provisions of Rule 21 shall not apply. Order 5 Rule 21 CPC provides
for service of summons where the defendant resides within the jurisdiction
of another Court. It provides that a summons may be sent by the Court by
which it is issued, whether within or without the State, either by one of its
officers or by post or by such courier service as may be approved by the
High Court, by fax message or by Electronic Mail service or by any other
means as may be provided by the rules made by the High Court to any
Court (not being the High Court) having jurisdiction in the place where the
defendant resides.
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
21. A conjoint reading of Order V Rule 9 (3) & (4) makes it
evident that the service of summons may be made by registered post
acknowledge due addressed to the defendant or his agent having power to
accept the service under sub-rule (3), which is one of the modes of service
of summons. In the case of a defendant residing outside the jurisdiction of
the Court in which the suit is instituted, such mode of service i.e.,
registered post acknowledge due, is not prohibited or excluded. What
sub-rule (4) says is that, the provisions of Order 5 Rule 21 CPC shall not
apply to the modes of service of summons as is referred to in sub-rule (3),
except by registered post acknowledgment due. In our view, sub-rule (4),
excludes the applicability of Rule-21, if the Court adopts such mode of
service as is referred to in sub-rule (3), except if it is by registered post
acknowledgment due. In other words, when the mode of service is by
registered post acknowledgment due, the applicability of Rule 21 is not
excluded.
22. The question then arises is what is the scope of Rule 21 and
the effect of its non-compliance, in a case, as the present one, where the
summons sent through registered post acknowledgment due have actually
been served? Would it still be a case of ‘No due service’?
23. Order V Rule 21, in our view is an enabling provision. It
enables the Court, in addition to the mode adopted for service of
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
summons, as prescribed under Rule 9 (3), where the mode adopted is by
registered post acknowledgment due, to adopt the procedure under Rule
21, where the defendant resides outside its jurisdiction where the suit is
instituted. Rule 9 (4) or Rule 21 or any other rule does not provide for the
consequences, if the summons through registered post acknowledge due
are directly sent to the defendant residing outside the jurisdiction of the
Court where the suit instituted, and not sent to the Court within whose
jurisdiction the defendant resides.
24. Rule 21 uses the expression “may”.It does not use “shall”.
25. So, in State (Delhi Admn.) V. I.K.Nangia and another9 , it
was observed that clearly the word “may” implies what optional. In
Sahodara Devi (Smt.) and others V. Government of India and
another 10 it was observed that “the word “may” is used to grant a
discretion and not to indicate a mandatory direction. It was further
observed that in the said case, the intention been that the Military
Estates Officer must grant a lease in all cases, the word used would
have been “shall” instead of “may””. We are of the view that Rule-21,
also being a procedural provision, and the mode of service as per Rule 21,
being in addition to the mode under Rule 9 (4) read with sub rule (3), the
compliance with this rule is not mandatory, but directory and optional only.
9
(1980) 1 SCC 258
10
(1972 3 SCC 156
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
Optional in this sense that additionally such a mode can also be adopted.
But, if not so adopted and at the same time, if the process sent through
registered post acknowledge due directly to such defendant is actually
served, it cannot be said that there was no due service, for
non-compliance with Rule 21.The non-compliance with Rule 21 would
certainly not result in ‘No service’ or ‘No due service’, when by the
registered post acknowledgment due, notices/summons are actually
served.
26. We are not oblivious that “May” may be read as “shall” and
“shall” and “may”. But, in a case of actual service by a mode of registered
post acknowledge due, we do not find any reason or justification, in such a
case, to read “may as “shall”. There may be cases, where there is no
proof of service by registered post acknowledgment due and the service is
denied, and there is also no compliance with Rule 21. Such cases may be
cases of ‘No service’, and may entitle for setting aside the order to
proceed exparte or/and the exparte decree. But, the present is not such a
case. Once the notices were served, it cannot be presumed contrary to
actual fact position that the defendants 1 to 3 had no notice or knowledge
of the C.O.S., nor that there was ‘No due service’.
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
27. There is no dispute on service through registered post
acknowledgment due, a mode of service prescribed in law under Order 5
Rules 9 (3) & (4) CPC.
28. In Aar Kay Traders,(supra) upon which the learned counsel
for the petitioner placed reliance, the High Court of Himachal Pradesh
held that in the cases where the defendant resides outside the territorial
jurisdiction of the Court in which the suit is instituted, the Court cannot
issue the summons by registered post acknowledge due.Paragraph Nos.
23 to 26 read as under :
“23. On a close and careful scrutiny of the legal
provisions, it is apparent that in the case of defendants residing
within the territorial jurisdiction of the Court where the suit is
pending, the Court is required to normally issue summons only
through the process- serving agency or through approved
courier service. It may, however under Rule (3), also direct
service of summons on the defendant(s) by registered post
acknowledgement due, speed post, courier service as well as
fax message or e-mail. In addition, the plaintiff can apply that
he may be permitted to serve the defendant personally under
Rule 9-A.
24. In cases where the defendant resides outside the
territorial jurisdiction of the Court in which the suit is
instituted, the Court cannot issue summons by registered post
acknowledgement due. It has been urged that this is a
retrograde step and will unnecessary delay the suit. It does not
appear to be so. Probably, the reason why registered post
(RNT &CGR,J)
C.R.P.No.2750 of 2024)service has not been permitted when the defendant resides
outside the jurisdiction is that in a large number of cases, the
registered letter never comes back and then a declaration of
deemed service is made after thirty days. The legislature,
probably felt that where the defendant resides far away,
outside the jurisdiction of the Court, it would be unjust to raise
such a presumption.
25. Be that as it may, this Court cannot go into the
reasons which may have weighed with the legislature since
the language of Sub-rule (4) is absolutely clear and the only
Interpretation which can be given to Sub-rule (4) is that
when the defendant resides outside the jurisdiction, he can
under this sub-rule only be served by speed post, courier
service, fax message or e-mail but not by registered post
acknowledgement due.
26. It is important to note that in Sub-rule (4), it has
been mentioned that the provisions of Rule 21 shall not apply
when service is sought to be effected by any of the methods
provided in Sub-rule (3), except registered post
acknowledgement due, This only means that the Court while
sending summons through speed post, courier service, fax
message or e-mail, is not required to send summons to the
Court in whose Jurisdiction the defendant resides. The
summons can be sent directly to the defendant without the
intervention of the other Court. This is supported by basic
common sense. There is no reason why summons which have to
be sent by speed post, courier service, fax or e-mail should be
sent to another Court for onward service. This will save time
and money. However, this does not mean that the defendant
(RNT &CGR,J)
C.R.P.No.2750 of 2024)residing outside the jurisdiction of the Court cannot be served
by the mode of process serving agency. This mode is still
available under Order V, Rule 21 wherein the Court can send
the summons to the Court (not being the High Court) having
jurisdiction over the place where the defendant resides.
Similarly, service can be effected on the application of the
plaintiff on such defendant under Rule9-A also.
29. In Aar Kay Traders (supra), the summons sent to the
defendant residing outside the jurisdiction of the Court of institution of suit,
through registered post acknowledgment due were received back with the
endorsement of ‘refused’. So, he was deemed to be served and order to
proceed exparte was passed. The application of the said defendant under
Order 9 Rule 7 CPC was allowed by the trial Court, taking the view that
under Order V Rules 9 & 21, summons could not be sent through
registered post acknowledgment due and the defendant could not be
deemed to be served. The High Court of Himachal Pradesh affirmed that
view, observing inter-alia that service can be effected by any mode of
service as prescribed in sub rule (3) except, registered post
acknowledgment due. Para 16 is as follows :
“16.Sub-rule (4) deals with service of defendants
residing outside the territorial jurisdiction of the Court. This
sub-rule is not very happily worded. It is, however, apparent
that the intention of this sub-rule is that when the defendant
resides outside the jurisdiction of the Court in which the suit is
(RNT &CGR,J)
C.R.P.No.2750 of 2024)instituted, service can be effected on such defendant by any
mode of service as prescribed in Sub-rule (3) except registered
post acknowledgment due. This would mean that the service
can be effected upon a defendant residing outside the
jurisdiction of the Court under Sub-rule (4) by courier service,
speed post, fax or e-mail.”
30. We with respect are unable to agree and to apply Aar Kay
Traders (supra), at least for two reasons. Firstly, that the present is a
case of actual service of summons on the defendant by registered post
acknowledgment due. It is not a case of refusal of service, and so, not of
‘No deemed service’, as was the case in Aar Kay Traders (supra).
Secondly, from a plain reading of sub rule (4) what follows, in our view, is
that the mode of service of summons as is referred to in sub rule (3) have
also been adopted for service, where a defendant resides outside the
jurisdiction of the Court in which the suit is instituted. What has been
excluded is, not the mode of service by registered post acknowledgment
due, but the applicability of rule 21, where the modes, other than
registered post acknowledgment due, has been resorted to by the Court.
In case, such a mode is registered post acknowledgment due, the
applicability of Rule 21 has not been excluded. For our reasons, assigned
in this judgment, we are of the view and hold that there is no bar in
sending the summons by registered post acknowledge due to the
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
defendant, who resides outside the territorial jurisdiction of the Court in
which the suit is instituted. In addition to sending the summons by
registered post acknowledgment due, the court may also resort to Rule-21
by sending the summons by post to the other Court, in whose jurisdiction
the defendant resides. But, if that is not done, and the registered post
acknowledgment due summons are actually served, it cannot be said that
there was no service of summons or that there was no due service. The
actual service of the summons made by the registered post acknowledge
due mode cannot be ignored or brushed aside.
31. In M/s Paras Ram Milkhi Ram(supra) the High Court of
Punjab and Haryana, referred Aar Kay Traders, (supra) and took the
same view. For the reasons and the discussion made by us, we with
respect are not in agreement with the view taken in M/s Paras Ram Milkhi
Ram(supra), as well.
32. In Ameena Begum (supra), there was some fraud played by
the plaintiff in obtaining a decree. It was held that “fraud” vitiates every
solemn act. The law on fraud is not in dispute. The ‘fraud’ is not the issue
here and nothing has been argued on that aspect.
33. Chunni Lal (supra) upon which the learned counsel for the
petitioner placed reliance, is an interim order in a pending petition before
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
the Allahabad High Court. So it needs no consideration. We are deciding
the matter finally.
34. Learned counsel for the petitioner submitted that in Ameena
Begum (supra), delay of 5767 days to set aside the exparte decree, was
condoned. We are also of the view that the law is well settled, that it is not
the length of delay, but what matters is the case shown. If the cause
shown is sufficient, the delay of any period can be condoned. But, if the
cause shown is not sufficient, even a single day’s delay may be fatal.
Ameena Begum (supra), is of no help to the petitioners.
35. In Pathipati Subba Reddy (Supra), on the point of
condonation of delay, the Hon’ble Apex Court, on consideration of the
proceedents on the point, summarized the law laid down by the Apex
Court at Paragraph No.26, and held as under :
“26. On a harmonious consideration of the provisions of the law,
as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there
should be an end to litigation by forfeiting the right to
remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or
availed of for a long time must come to an end or cease to
exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be construed
in a strict sense whereas Section 5 has to be construed
liberally;
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or cause
of substantial justice may be kept in mind but the
same cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation
Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is
discretionary in nature and may not be exercised
even if sufficient cause is established for various
factors such as, where there is inordinate delay,
negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also
entitled to the same benefit if the Court is not
satisfied with the cause shown for the delay in filing
the appeal;
(vii) Merits of the case are not required to be considered in
condoning the delay; and
(viii) Delay condonation application has to be decided on
the parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions have
been imposed, tantamounts to disregarding the statutory
provision.”
36. In Sheo Raj Singh (Supra) the Hon’ble Apex Court observed
that the condonation of delay being a discretionary power available to
Courts the exercise of discretion must necessarily depend upon the
sufficiency of the cause shown, and the degree of acceptability of the
explanation. The length of delay being immaterial. It was further observed
that, sometimes due to want of sufficient cause being shown or an
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
acceptable explanation being offered, delay of the shortest range may not
be condoned, whereas, in certain other cases, delay of long periods can
be condoned, if the explanation is satisfactory and acceptable. The Courts
must distinguish between an ‘explanation’ and an ‘excuse’. It was
observed that, there is no formula that caters to all situations and,
therefore, each case for condonation of delay based on existence or
absence of sufficient cause has to be decided on its own facts. It was
further reiterated that a distinction should be drawn between inordinate
unexplained delay and explained delay.
37. Paragraph Nos.29 and 30 of Sheo Raj Singh (Supra) read
as under :
“29. Considering the aforementioned decisions,
there cannot be any quarrel that this Court has stepped
in to ensure that substantive rights of private parties
and the State are not defeated at the threshold simply
due to technical considerations of delay. However,
these decisions notwithstanding, we reiterate that
condonation of delay depend a discretionary power
available to Courts, exercise of discretion must
necessarily depend upon the sufficiency of the
cause shown and the decree of acceptability of the
explanation, the length of delay being immaterial.
Sometimes, due to want of sufficient cause being
shown or an acceptable explanation being
proffered, delay of the shortest range may not be
(RNT &CGR,J)
C.R.P.No.2750 of 2024)condoned whereas, in certain other cases, delay of
long periods can be condoned if the explanation is
satisfactory and acceptable. Of course, the signed
must distinguish between an explanation’ and an
‘excuse’. An ‘explanation’ is designed to give someone all
of the facts and lay out the cause for something. It helps
clarify the circumstances of a particular event and
allows the person to point out that something that has
happened is not his fault, if it is really not his fault.
Care must however be taken to distinguish an
explanation from an excuse. Although people tend to see
‘explanation’ and ‘excuse’ as the same thing and
struggle to find out the difference between the two, there
is a distinction which, though fine, is real. An ‘excuse’ is
often offered by a person to deny responsibility and
consequences when under attack. It is sort of a
defensive action. Calling something as just an ‘excuse’
would imply that the explanation proffered is believed
not to be true. Thus said, there is no formula that caters
to all situations and, therefore, each case for
condonation of delay based on existence or absence of
sufficient cause has to be decided on its own facts. At
this stage, we cannot but lament that it is only excuses,
and not explanations, that are more often accepted for
condonation of long delays to safeguard public interest
from those hidden forces whose sole agenda is to ensure
that a meritorious claim does not reach the higher
courts for adjudication.
30. Be that as it may, it is important to bear in mind
that we are not hearing an application for condonation
(RNT &CGR,J)
C.R.P.No.2750 of 2024)of delay but sitting in appeal over a discretionary order
of the High Court granting the prayer for condonation of
delay. In the case of the former, whether to condone or
not would be the only question whereas in the latter,
whether there has been proper exercise of discretion in
favour of grant of the prayer for condonation would be
the question. Law is fairly well-settled that “a court of
appeal should not ordinarily interfere with the discretion
exercised by the courts below”. If any authority is
required, we can profitably refer to the decision in
Manjunath Anandappa v. Tammanasa
MANU/SC/0248/2003: (2003) 10 SCC 390, which in
turn relied on the decision in Gujarat Steel Tubes Ltd. v.
Gujarat Steel Tubes Mazdoor Sabha
MANU/SC/0369/1979: (1980) 2 SCC 593 where it has
been held that “an appellate power interferes not when
the order appealed is not right but only when it is
clearly wrong.”
38. In Popat Bahiru Govardhane (supra), the Hon’ble Supreme Court
reiterated that the law of limitation may harshly affect a particular party, but
it has to be applied with all its rigour when the statute so prescribes. The
Court has no power to extend the period of limitation on equitable grounds.
This statutory provision may cause hardship or inconvenience to a
particular party, but the Court has no choice but to enforce it giving full
effect to the same. Paragraph 13 reads as under :
(RNT &CGR,J)
C.R.P.No.2750 of 2024)“13. It is a settled legal proposition that law of
limitation may harshly affect a particular party but it
has to be applied with all its rigour the statue so
prescribes. The Court has no power to extend the
period of limitation on equitable grounds. The statutory
provision may cause hardship or inconvenience to a
particular party, but the Court has no choice but to
enforce it giving full effect to the same. The legal maxim
“dura lex sed lex” which means “the law is hard but it
is the law”, stand attracted in such a situation. It has
consistently been held that, “inconvenience is not” a
decisive factor to be considered while interpreting a
statue. “A result flowing from a statutory in considers a
distress resulting from its operation”.
39. In Lingeswaran (supra), the Hon’ble Apex Court, held that
once it is found, that the delay was not properly explained and there
was no merit in the application for condonation of delay, the matter
should have rested there and the application for condonation of delay
was required to be dismissed. Para 5 and 5.1 are as under:
“5. We are in complete agreement with the view taken by the
High Court. Once it was found even by the learned trial Court
that delay has not been properly explained and even there
are no merits in the application for condonation of delay,
thereafter, the matter should rest there and the condonation
of delay application was required to be dismissed. The
approach adopted by the learned trial Court that, even after
finding that, in absence of any material evidence it cannot be
(RNT &CGR,J)
C.R.P.No.2750 of 2024)said that the delay has been explained and that there are no
merits in the application, still to condone the delay would be
giving a premium to a person who fails to explain the delay
and who is guilty of delay and laches. At this stage, the
decision of this Court in the case of Popat Bahiru Goverdhane
v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is
required to be referred to. In the said decision, it is observed and
held that the law of limitation may harshly affect a particular party
but it has to be applied with all its rigour when the statute so
prescribes. The Court has no power to extend the period of
limitation on equitable grounds. The statutory provision may
cause hardship or inconvenience to a particular party but the
Court has no choice but to enforce it giving full effect to the same.
5.1. In the case of Maniben Devraj Shah v. Municipal
Corporation of Brihan Mumbai, (2012) 5 SCC 157, in paragraph
14, it is observed and held as under: “The law of limitation is
founded on public policy. The limitation Act, 1963 has not been
enacted with the object of destroying the rights of the parties but
to ensure that they approach the court for vindication of their
rights without unreasonable delay. The idea underlying the
concept of limitation is that every remedy should remain alive
only till the expiry of the period fixed by the legislature. At the
same time, the courts are empowered to condone the delay
provided that sufficient cause is shown by the applicant for not
availing the remedy within the prescribed period of limitation.”
40. Order IX Rule 13 CPC reads as under :-
“13. Setting aside decree ex parte against
defendants.-In any case in which a decree is passed ex
parte against a defendant, he may apply to the Court by
which the decree was passed for an order to set it aside;
and if he satisfies 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 upon such terms as to costs,
(RNT &CGR,J)
C.R.P.No.2750 of 2024)payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature
that it cannot be set aside as against such defendant only
it may be set aside as against all or any of the other
defendants also:
1[Provided further that no Court shall set aside a
decree passed ex parte merely on the ground that there
has been an irregularity in the service summons, if it is
satisfied that the defendant had notice of the date of
hearing and had sufficient time to appear and answer the
plaintiffs claim.]2[Explanation. Where there has been an appeal against a
decree passed ex parte under this rule, and the appeal
has been disposed of on any ground other than the ground
that the appellant has withdrawn the appeal, no
application shall lie under this rule for setting aside the
ex parte decree.]”
41. Order IX Rule 13 C.P.C, its second Proviso, specifically
provides that no court shall set aside the decree passed ex parte
merely on the ground that there has been an irregularity in the service
of summons, if it is satisfied that the defendant had notice of the date of
hearing and had sufficient time to appear and answer the plaintiff’s
claim. The submission of the learned counsel for the respondents is
that even in cases of irregularity in service of summons that would not
be a ground to set aside the ex parte decree. In Basant Singh and
others vs. Roman Catholic Mission11, the Hon’ble Apex Court held
that the second Proviso to Order 9 Rule 13 casts an embargo on the court
11
AIR 2002 SC 3557,
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
that a decree passed ex-parte shall not be set aside merely on the ground
that there has been an irregularity in the service of summons. We have held
that, there was actual service of the summons on the defendants 1 to 3
by registered post with acknowledgment and defendant No.4 was
served through court.
42. The next submission of the learned counsel for the
petitioners, is that under Article 123 of the Limitation Act, the period of
limitation to apply to set aside a decree passed ex parte is 30 days from
the date of the decree and where the summons or notice was not duly
served, the period of 30 days, begins to run from the date, the applicant
had knowledge of the decree.
43. Article 123 in Schedule of the Limitation Act reads as under:
Description of Period of limitation Time from which
suit period begins to run
123. To set Thirty days. The date of the decree
aside a decree or where the summons
passed ex parte or notice was not duly
or to rehear the served, when the
appeal decreed applicant had
or heard ex knowledge of the
parte. decree.
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.
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
44. There is no dispute on the legal position with respect to the
limitation when the time begins to run. But, in the present case, for the
aforesaid discussion, the period of 30 days is from the date of the
decree and not from the date of the alleged knowledge of the decree.
Present is not a case of the defendants not duly served.
45. Our conclusions are that in a case where the defendant
resides outside the jurisdiction of the court in which the suit has been
instituted and the summons, issued by the registered post with
acknowledgment due, are actually served, the court may still adopt the
procedure as under Order 5 Rule 21 of C.P.C but if such a procedure
has not been followed, there would be no illegality on irregularity in
service of summons, so as to set aside the order to proceed ex parte or
the ex parte decree. That would not be a case of ‘no service’ or ‘no due
service’ or irregularity in service of summons.
Point No.2 :-
46. Thus, considered on point No.2, we do not find any
illegality in the impugned order. The Judgment dated 30.09.2024
impugned in the Civil Revision Petition does not call for any interference
in the exercise of the jurisdiction under Section 115 C.P.C.
RESULT :-
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
47. The Civil Revision Petition lacks merits, and is dismissed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any
pending, shall also stand closed.
____________________
RAVI NATH TILHARI, J
_______________________
CHALLA GUNARANJAN,J
Date : 09.01.2025
Note: L.R. copy be marked
B/o.
RPD.
(RNT &CGR,J)
C.R.P.No.2750 of 2024)
80
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
(DISMISSED)
CIVIL REVISION PETITION NO: 2750 OF 2024
Date : 09.01.2025
Note: L.R. copy be marked
B/o.
RPD.