1. Suit for money decree — Ex-parte decree on deemed service when husband refused summons — Delay condonation sought. (Para 2 , 3 )
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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
Narsing Rao Nandikonda, J
SALEHA BEGUM – Appellant
Versus
M/S. PREMA SECURITY – Respondent
CIVIL REVISION PETITION No.4392 of 2014
Advocates:
For the Appellants/Petitioners: Syed Yasar Mamoon
For the Appellants/Petitioners: Syed Yasar Mamoon
Refusal of court summons by an adult family member under Order V Rule 15 CPC cannot be attributed as personal refusal or deemed knowledge of the defendant to deny a prayer for condonation of delay in seeking to set aside an ex-parte decree.
Headnote:(A) Civil Procedure - Service of Summons - Refusal by adult family member - While service on an adult member of the family is permissible under Order V Rule 15 CPC, the refusal of a family member (husband) to receive summons cannot be automatically construed as refusal or deemed knowledge on the part of the defendant herself for the purpose of calculating limitation for condonation of delay. (Para 9)
(B) Limitation Act - Condonation of Delay - Sufficient Cause - When the defendant was unaware of the proceedings due to the callous approach of a family member in refusing service, such circumstances constitute sufficient cause to condone the delay in filing an application to set aside an ex-parte decree. (Para 8, 9)
Issues: Whether the refusal of summons by the husband of the defendant can be attributed to the defendant as deemed service/knowledge to deny condonation of delay under Section 5 of the Limitation Act.
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2. Petitioner claimed no summons served and knowledge only on bailiff visit; respondent argued valid deemed service on adult family member. (Para 3 , 4 )
3. Husband's refusal of summons cannot be imputed as knowledge to the defendant wife; cause was beyond her control. (Para 8 , 9 )
4. Refusal of summons by an adult family member does not automatically impute knowledge to the defendant party themselves. (Para 9 )
5. Civil revision allowed; delay of 235 days condoned subject to costs; trial court to hear Order IX Rule 13 application on merits. (Para 9 , 10 )
6. Can refusal of summons by an adult family member be treated as service on, and knowledge of, the defendant?
No. While Order V Rule 15 CPC permits service on an adult family member, their refusal cannot be taken as refusal by the defendant or impute knowledge of the case to the defendant. (Para 9 )
7. What constitutes 'sufficient cause' for condoning delay under Section 5 of the Limitation Act in a petition to set aside an ex-parte decree?
A cause beyond the control of the party invoking the section. Where summons were not served on the party and they had no actual knowledge, that constitutes sufficient cause. (Para 8 , 9 )
8. Is an ex-parte decree valid if summons were refused only by a family member and not by the defendant?
The court held that such a decree cannot be sustained against the defendant, as knowledge cannot be imputed to her based solely on the refusal by a family member. (Para 9 )
ORDER:
This Civil Revision Petition is filed seeking to set-aside the order dated 30.07.2014 in I.A.No.36 of 2014 in O.S.No.1287 of 2012 passed by the learned IV Senior Civil Judge, City Civil Court, Hyderabad.
2. The facts of the case in a nutshell are that respondent/plaintiff filed a suit in O.S.No.1287 of 2012 for recovery of money against the petitioner/defendant herein for a sum of Rs.1,61,500/- and the summons issued by the Court could not be served by the Process Server as the petitioner/defendant was not present at her house at that point of time. However, the husband of the petitioner was present but he refused to receive the summons, as such summons were affixed on the main door. Refusal by the husband of the petitioner/defendant to receive the summons emanated from the Court and more pertinently when wife and husband were residing under one roof, the summons were held to be deemed service on the petitioner/defendant. Further, as per Order V Rule 15 CPC the husband of the defendant being an adult member of the family, he ought to have received summons and consequent upon such refusal it was held to be deemed service. Considering the same, the learned Judge, decreed the Suit and execution petition was filed in E.P.No.224/2013 and attachment warrant was issued against the petitioner/defendant, then the petitioner/defendant came to know about the same and filed an application under Section 5 of Limitation Act to condone the delay of 235 days in preferring petition under Order IX Rule 13 CPC vide I.A.No.36 of 2014 in O.S.No.1287 of 2012 on 24.01.2014.
3. The I.A.No.36 of 2014 in O.S.No.1287 of 2012 on 24.01.2014 was filed by the petitioner/defendant contending that the Bailiff and her husband informed her that an ex-parte decree was passed and she was not aware of any such proceedings and that all the belongings in her house were purchased by her husband and the said articles cannot be attached. Further, she came to know about the decree only when the Court Bailiff visited her house on 20.01.2014, as such there is no service of summons and there is a delay of 235 days in filing the application.
4. The respondent filed a counter before the trial Court denying the averments and contended that though the summons have been duly served on the defendant only to avoid Court proceedings the petitioner/defendant has not appeared before the Court and only to protract the Court proceedings, as such the learned Judge, rightly passed the decree in favour of the respondent/plaintiff. Considering the contentions of both the counsel, the learned Judge dismissed the petition contending that there are no bonafides in the contention of the defendant. Assailing the same, the present Revision.
5. Learned counsel for the petitioner contended that the learned Judge did not consider that no summons were served on the petitioner herein. The alleged process server report that the husband of the petitioner refused to receive the summons and she came to know about the decree and she made an application on 20.01.2014 within the stipulated time from the date of her knowledge and there is no necessity to file application under Section 5 of the Limitation Act, but as a precautionary measure she has filed an application under Section 5 of Limitation Act, seeking to condone the delay of 235 days.
6. Notices were sent to respondent/plaintiff by this Court and the same was served. Despite service of notice, none appeared for the respondent.
7. Heard Mr.Syed Yasar Mamoon, learned counsel for the petitioner. No representation on behalf of the respondent. Perused the record.
8. On perusal of the order passed by the learned Judge, the reason for dismissal of the application filed under Section 5 of Limitation Act is specifically only on the ground that the petitioner's husband refused to take summons and from the date of refusal of summons the knowledge of the petitioner has been inferred. It is also to be kept in mind for condonation of delay, sufficient cau
