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MADRAS HIGH COURT
R. Banumathi and B. Rajendran, JJ.
K.S Rajendhiran —Appellant
versus
Dr. M.R. Muralikrishnan and Ors. —Respondents
OSA No. 47 of 2011
Decided on 12.9.2011
Counsel for the Parties:
For the Appellant:S. Doraisamy, Senior Counsel for Kandhan Duraisami, Advocate.
For the Respondent:R. Sankaranarayanan for K. Sumathi, Advocate.
IMPORTANT POINT
Merely because service of suit summons was made by means of ‘paper publication’ under Order V, Rule 2 of CPC, it cannot be construed that. service in normal mode was not proper or correct.
Headnote:Civil Procedure Code, 1908—Order V— Rule 2—Service of summons—By means of substantial service—Counsel appeared on behalf of defendant—Filed ‘Vakalath’—Entitled to receive copy of plaint from Registry or from plaintiff—Omission to annexure copy of plaint to suit summons cannot effect service of summons—Mere effecting substituted service after being served in interlocutory application not makes earlier normal service improper or incorrect—Defendant appeared through Advocate in interim application in suit, remained ex parte later—Cannot take recourse to Order V, Rule 2 of CPC to postpone date of reckoning of period of limitation for filing application for setting aside ex parte decree. (Paras 7 and 10)
Result:Order set-aside, no costs.
B. Rajendran, J.—The Appellant has come forward with this Appeal against the order dated 18.2.2010 dismissing his Application No.3447 of 2008 in C.S. No. 923 of 2002 which was filed for condoning the delay of 1281 days in setting aside the ex parte decree dated 29.12.2004 passed in the suit.
2. According to the Appellant, he, alongwith the First Respondent carried on partnership business for mining and quarrying granite blocks as per the Memorandum of Understanding entered into between them as early as on 6.6.1996. The partnership business was stopped on and from August 1996 due to misunderstanding between the partners. Thereafter, based on a Complaint given by the First Respondent herein to the Police complaining non-payment of amount, the Appellant was arrested. During his Police custody, at the instigation of the Respondents herein, the signatures of the Appellant were obtained in blank papers and it was utilised by the Respondents to file the Suit in C.S. No.923 of 2002 against the Appellant. The Appellant would further contend that he came to know about the ex parte decree dated 29.12.2004 passed in the suit only when he returned from Andhra Pradesh to Chennai and found that the summons in respect of EP No.113 of 2006 in C.S. No.923 of 2002 in Proclamation case No.1 of 2007 were affixed on his house at No.54, Gajapathy Street, Shenoy Nagar, Chennai-30 on 28.4.2008. Therefore, he came to know about the ex parte decree dated 29.12.2004 passed in the suit only on 28.4.2008. As the Suit itself was filed, based on a fabricated agreement dated 23.01.2001, for recovery of a sum of Rs. 50,00,000 together with interest at the rate of 24% per annum on Rs.24,00,000, in which the ex parte decree dated 29.12.2004 was passed without serving summons on him, the ex parte decree is liable to be set aside. Even though the Plaint indicates the address as No.54, Gajapathy Street, Shenoy Nagar, Chennai, he was not regularly residing there. Even the substituted service ordered by the Court prior to granting the ex parte decree was not a true and proper service. The suit summons have not been served nor the summons in the Execution Petition served on him. Since there is no proper compliance to the provisions contained in Order 5, Rule 2 of CPC, in respect of service of summons, he has filed the present Application to set aside the ex parte decree. As there was a delay caused in filing the Application to set aside the ex parte decree dated 29.12.2004, inasmuch as he came to know about the ex parte decree only on 28.4.2008, the delay is justified and immediately on coming to know about the ex parte decree on 28.4.2008, he filed the Application for setting aside the ex parte decree.
3. The First Respondent vehemently resisted the Application filed by the Appellant on the ground that the Appellant was not a business partner along with the First Respondent and there is no Partnership Agreement between them. The Appellant received Rs.17,00,000 by way of two cheques, Rs.2,00,000 in cash and another sum of Rs.5,00,000 in cash separately. Ultimately, an agreement was entered into between the Appellant and the First Respondent herein to that effect. After receiving Rs.24,00,000 from the First Respondent, the Appellant, instead of utilising it for his business needs spent the amount for his personal needs. In fact, the money was paid when the Appellant was a tenant under the Respondents herein and the Appellant also agreed to pay the amount with interest. As the Appellant did not repay the amount within six months as agreed, the agreement dated 23.1.2001 was executed, whereby the Appellant agreed to pay the amount within six months. In spite of lapse of time, since the Appellant has not come forward to pay the amount, the suit was filed. Originally the Suit was filed alongwith an Application for attachment and the summons in the said Application were duly served on the Appellant through Court. On receipt of the summons, the Appellant appeared before
