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2023 Supreme(AP) 1374
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Ravi Nath Tilhari, J.
D.Dhanalakshmi - Appellant
Versus
N.P.Balaraja Naidu - Respondent
Civil Revision Petition No. 1796 of 2023
Decided On : 31-07-2023
Important Points
The main legal point established in the judgment is that publication in a newspaper under the court's order is sufficient service of summons, and lack of awareness of the publication does not invalidate the service. Additionally, the judgment emphasizes the importance of adhering to the limitation period for setting aside an ex parte order.
Subject
Civil Law - Civil Procedure
Act Referred
LIMITATION ACT : Art.137
Headnote
SPECIFIC PERFORMANCE - CIVIL PROCEDURE CODE - [Order 9 Rule 7 CPC, Sec. 151 CPC, Article 137 of the Limitation Act] - The court discussed the service of summons through publication in a newspaper, the knowledge of the defendant about the suit proceedings, and the limitation period for setting aside an ex parte order. The court emphasized that publication in a newspaper under the court's order is sufficient service, and the defendant's lack of awareness of the publication does not invalidate the service. The court also highlighted that the defendant's admission of receiving notice about the suit proceedings undermined her claim of lack of knowledge. The court held that the application to set aside the ex parte order was rightly rejected as it was filed after the limitation period and the defendant was not entitled to file a written statement at that stage.
Fact of the Case:
The plaintiff filed a suit for specific performance of contract. The 3rd defendant failed to appear in the suit, and her application to set aside the ex parte order was rejected by the court due to being filed after the limitation period and her admission of knowledge about the suit proceedings.
Finding of the Court:
The court found that the defendant's lack of awareness of the publication in the newspaper did not invalidate the service of summons, and her admission of receiving notice about the suit proceedings undermined her claim of lack of knowledge. The court also held that the application to set aside the ex parte order was rightly rejected as it was filed after the limitation period and the defendant was not entitled to file a written statement at that stage.
Issues: The issues involved the validity of service of summons through publication in a newspaper, the defendant's knowledge about the suit proceedings, and the limitation period for setting aside an ex parte order.
Ratio Decidendi: The court emphasized that publication in a newspaper under the court's order is sufficient service, and the defendant's lack of awareness of the publication does not invalidate the service. The court also highlighted that the defendant's admission of receiving notice about the suit proceedings undermined her claim of lack of knowledge. The court held that the application to set aside the ex parte order was rightly rejected as it was filed after the limitation period and the defendant was not entitled to file a written statement at that stage.
Final Decision: The Civil Revision Petition was dismissed, and no order as to costs was given.
Maheswara Rao Kuncheam, Advocate
JUDGMENT
1. Heard Sri Maheswara Rao Kuncheam, learned counsel for the petitioner and perused the material on record.
2. The plaintiff/1st respondent, by name, Sri N.P. Balaraja Naidu (the deceased) filed O.S.No.89 of 2015 against the present 4th respondent/1st defendant, by name, Sri M. Jyotheswara Naidu, for specific performance of contract, on the file of the V Additional District Judge's Court, Tirupati. The suit was filed on 8/4/2015. The 1st defendant, pending the suit, executed sale deed on 27/5/2015 in favour of the present 2nd respondent. The 2nd defendant executed sale deed in favour of the present 3rd respondent on 5/6/2015. The 1 st defendant filed written statement on 3/8/2015. Later on, the plaintiff filed I.A.No.461 of 2016 to implead defendants Nos.2 and 3 as parties in the suit, which was allowed. The suit is pending.
3. In the suit, by order, dtd. 31/1/2020, the Court passed the order to proceed ex parte against the petitioner/3rd defendant. The petitioner/3rd defendant Smt. D. Dhanalakshmi filed I.A.No.235 of 2023 under Order 9 Rule 7 CPC read with Sec. 151 CPC to set aside the order dtd. 31/1/2020, along with the written statement with permission to receive the same. I.A.No.235 of 2023 was filed on 9/3/2023, after more than 3 years of the order, dtd. 31/1/2020.
4. The V Additional District Judge, Tirupati has dismissed the application I.A.No.235 of 2023 by order dtd. 10/7/2023. Challenging the said order, the present revision petition has been filed.
5. Learned counsel for the petitioner submits that the paper publication for service was ordered which was published in 'Prajasakhti' daily newspaper on 31/1/2020, but the said publication was not noticed by the petitioner, and consequently, the petitioner could not appear in the suit and was set ex parate.
6. He further submits that there is no bar in taking on record the written statement in civil suit, even beyond the period of 90 days. Consequently, rejection of I.A.No.235 of 2023 is not justified. He has placed reliance in the cases of Nanda Dulal Pradhan v. Dibakar Pradhan , 2022 (5) ALT 1 , Atcom Technologies Ltd. v. Y. A. Chunawala & Co. , (2018) 6 SCC 639 and K. Munirathnam Vs. Jakkadanam Radha and Ors. ,[ CRP.No.1262 of 2023, APHC, decided on 8/5/2023 ] .
7. I have considered the submissions advanced by the learned counsel for the petitioner and perused the material on record.
8. From the events / narration of facts, as above, it is evident that after institution of the suit by the plaintiff, the 1st defendant transferred the suit property on 27/5/2015 to the 2nd defendant and the 2nd defendant transferred the same to the 3rd defendant on 5/6/2015. Those transactions have taken place during pendency of the suit. The 1st defendant is contesting the suit by filing the written statement.
9. The petitioner/3rd defendant did not put her appearance, in spite of publication of notice in the newspaper. The ground, as argued, is that the 3rd defendant did not notice such service through publication. The ground taken in I.A.No.235 of 2023 for setting aside the order to proceed ex parte dtd. 31/1/2020, was that defendant No.3 had not seen the publication.
10. The aforesaid is not a ground to hold that there was no service. Publication in newspaper under the order of the Court's order is sufficient service on the concerned person, is well settled in law.
11. In Sunil Poddar v. Union Bank of India., (2008) 2 SCC 326 the appellants therein, upon whom the service was considered as sufficient on publication in the Hindi newspaper, namely Nav Bharat Times, and it was argued on their behalf that the appellants were not the subscribers of that newspaper and were not reading. It was held that such contention was wholly irrelevant, and it was immaterial whether the appellants were subscribers of the said newspaper and whether they were reading it. Once a summons is published in a newspaper having wide circulation in the locality, it does not lie in the mouth of the person s
