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M/s. B.C.I. Publications represented by its Partner Anjali Sinha v/s M/s. Indian Institute of Horticultural research represented by its Partner

    M.F.A. No. 3095 of 2015 (CPC)

    Decided On, 24 January 2017

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

    For the Appellants: Yeshu Mishra, G.V. Shashi Kumar, Advocates. For the Respondent: S.V. Shastri, Advocate.



Judgment Text

(Prayer: This MFA is filed U/o XLIII Rule 1(d) of Code of Civil Procedure 1908 against the order dt.28.02.2015 passed in miscellaneous petition No.305/2011 on the file of the IX Additional City Civil and Sessions Judge, Bangalore, dismissing the petition filed u/o 9 Rule 13 of CPC.)

1. Heard the learned counsel for the appellants and also the respondents.

2. The undisputed facts between the parties to the suit are that:

The respondent – M/s. Indian Institute of Horticultural Research, has filed a suit OS No.2267/2001 against the appellant herein M/s. BCI Publications for recovery of a sum of Rs.4,14,435-12 with Court cost and interest at the rate of 12% p.a. The said suit was decreed in favour of the plaintiff and the said decree was also put into execution in EP No.305/2006 and the same was dismissed on 30.6.2009 and thereafter another Execution Petition was filed in EP No.1243/2010 and the same is pending before the trial Court. It is also not in dispute that the appellant has issued a notice to the respondent as per Ex.R1 on 3.3.2008 and thereafter a Misc. Petition was filed in MISC.PETITION No.305/2011 which came to be contested and the said petition was dismissed, against which an appeal was filed before this Court in MFA NO.10134/2013. In the said case, this Court found that the trial Court has not given any finding with regard to the application filed by the appellant u/s.5 of the Limitation Act, but, disposed of the said petition on merits. This Court remitted the matter to the trial Court with a direction to give finding on the limitation application and then to proceed with the case in accordance with law. It is also not in dispute that the parties have led evidence in the said petition. After due contest of the matter, the trial Court has disposed of the said Misc. No.305/2011 dismissing the application filed u/s.5 of the Limitation Act and also consequently dismissing the Misc. petition on merits. Against which order, the present appeal is preferred by the appellant.

3. The learned counsel for the appellant in support of the grounds urged in the Memorandum of Appeal submitted the arguments on two limbs:

3.1. The first limb of the argument is that, on merits of the case he has contended that, before the trial Court in the original proceedings, the summon which has been issued to the defendant has not been duly served. Further, he contends as the summon was not served, the Court has ordered for service of summon by way of affixture. The said affixture of summons has not been made on the correct address of the appellant. It is contended that, prior to the filing of the suit, a notice has been addressed by the plaintiff to the defendant as per Ex.P4 in which the address of the defendant has been correctly given though some minor mistake was there. But subsequently, when the suit was filed, some other address was given which is altogether a different address on which a notice of affixture was ordered by the trial Court and thereafter, the Court holding that the service of summons by way of affixture as sufficient and proceeded to pass an exparte decree.

3.2. It is further contended by the learned counsel for the appellant that when the service of summons by way of affixture is not on proper address of the defendant, at any stretch of imagination, it cannot be construed as sufficient service on the defendant. Therefore, such a service if it is held to be sufficient, the defendant would suffer great inconvenience and injustice. Therefore, he contends that the order of the trial Court in MISC.305/2011 is not proper sofar as this aspect is concerned. The learned counsel also contended even the pendency of the suit if it is within the knowledge of the defendant that itself is not sufficient to throw away the appeal because it is incumbent and duty of the Court to examine the correct address of the defendant and whether the affixture has been made to the correct address of the defendant and then the trial Court ought to have recorded the sufficiency of service. Therefore, when the duty of the Court is violated, the defendant cannot be blamed for his non-appearance before the trial Court. Therefore, he contends that the order of the trial Court is liable to be set aside and the matter has to be remitted to the trial Court by providing opportunity to the defendant/appellant herein.

3.3. In support of the second limb of his arguments, the learned counsel submitted that the trial Court has committed serious error in dismissing the petition on the ground of limitation taking into consideration that the defendant had knowledge of the proceedings before the trial Court and before the executing Court. In spite of that and knowing fully well, the respondent has addressed a letter to the concerned Minister as per Ex.R1 sending a copy to the respondent herein. The letter of the Minister dated 3.3.2008 is marked before the trial Court as Ex.R1. The trial Court taking serious view of the said letter, held that the appellant had knowledge of the original proceedings on 3.3.2008 itself, but in spite of that the MISC petition was filed beyond time as the Misc. Petition was filed on 15.4.2011 and the same is hopelessly barred by limitation.

4. In this regard, the learned counsel for the appellant submitted that though the letter Ex.R1 was admitted by the appellant, there is no material to show that he had knowledge of the suit number, execution petition proceedings and the Court in which the said suit or the petition was pending so as to impute the knowledge upon him as to when he actually acquired the knowledge of the earlier proceedings and in spite of that he did not file the Misc. Petition in time. In order to show the diligence of the appellant, the appellant himself wrote a letter to the Minister and a copy to the respondent. That shows that he was making all his efforts to find out, what was running against him and what was done by the respondent herein. Therefore, the learned counsel contends that the trial Court has also committed a serious error in dismissing the petition on the ground of limitation.

5. Per contra, the learned counsel for the respondent has seriously contended before the Court on the point of limitation that, Ex.R1 discloses that the appellant had knowledge of the suit filed against him in the civil suit and wrong address being given by the plaintiff. But no other materials are placed as to what effort that has been done by the appellant after issuance of Ex.R1 dated 3.3.2008 to ascertain the existence of any suit or execution petition against him or any exparte decree being passed against him. It is not a day or two delay that the Court can condone, but there is an inordinate delay of more than five years. Therefore, at any stretch of imagination, it cannot be said that the appellant was very diligent and made all efforts to ascertain as to whether any case is pending against him. In the absence of such materials before the Court either by way of affidavit or by way of any acceptable evidence, the delay cannot be condoned.

6. In the above said circumstances, the learned counsel contended that the delay is devoid of merit and the same is liable to be dismissed as the trial Court has considered all the material facts and legal aspects and thereafter dismissed the Misc. Petition.

7. Having heard the above said arguments, I have carefully perused the materials on record.

8. Of course, the learned counsel is right in contending that the summon that has been issued by the Court is not on the correct address of the defendant. It is true that the minor discrepancies can be condoned by the Court while holding sufficiency of service of summons. In this case, it is seen that in the original suit OS No.2267/2001, the address of the defendant is given as –

'M/s. BCI Publications,

O/o. The Book Shoppe,

No.401, Blue Moon Pearl

Raheja Arcade, No.120

80 feet Road, 1st Cross,

V Block, Koramangala

Bangalore-95, Rep. by its

Managing Partner.'

The learned counsel has drawn my attention to Ex.P4. It is also marked before the trial Court which is a letter sent by RPAD by the respondent to the appellant which is not in dispute which bears the address of the appellant as:

'The Managing Partner

M/s. BCI Publications,

O/o. The Book Shoppe,

Opp: Raheja Arcade,

No.407, Blue Moon Pearl

1st Cross, VII Block,

Koramangala Industrial Area,

Bangalore-95.'

It is clear from the above said two documents that there is some discrepancy in giving the address of the appellant before the trial Court. Therefore, the examination of the person who affixed the summons on the property was an absolute necessity before the trial Court in order to come to a definite conclusion that the notice or summon issued by the Court was affixed on the correct address of the defendant. As there is difference in the address, the Court should have applied its mind to ascertain whether summons has been duly served on the correct address of the defendant or not. In the absence of meticulous examination by the Court, it cannot be said that the Court has properly satisfied that, the summons issued by means of affixture is proper and correct so as to proceed against the defendant.

9. In view of the above said facts and circumstances of the case, the learned counsel in connection with this aspect relied upon a ruling reported in AIR 2005 NOC 303 (CAL) between Jawar Prasad Shaw and Others Vs. Jharna Ghosh and Others, wherein the Calcutta High Court held that when specific evidence has been given on behalf of the petitioners alleging non-service of summons, onus shifts upon the plaintiff to rebut such evidence. Therefore, in such a case, it is the duty of the plaintiff to bring either postal peon or the process server to show that summon was really tendered to the defendant but he refused. Once, it is established that there was no service of summons, the second proviso to order 9 Rule 13 of CPC is not attracted as the said proviso applies only to a case of irregularity of service and in such cases, the onus shifts upon the plaintiff to show that the defendant had knowledge of the date of hearing and had sufficient time to contest the suit.'

9.1. In another ruling reported in 1976(1) KLJ 35 between Padmavathi Bai Vs. Parvathiamma, wherein this Court has observed that even during the pendency of the suit, knowledge of the pendency of the suit is not sufficient to hold that service of summons by the Court is properly effected. It is the duty of the Court to see that summons and notices issued by the Court are properly served on the correct address of the parties. Therefore, the learned counsel contends that mere knowledge of pendency of the suit cannot said to be the knowledge of the date of hearing before the Court. When such being the case, the order passed by the trial Court is not proper and correct.

9.2. In another ruling relied upon by the learned counsel reported in (2002) 5 SCC 377 between Sushil Kumar Sabharwal Vs. Gurpreet Singh and others, almost similar set of facts are involved. The Hon’ble Apex Court in the said case has observed that knowledge of existence of interpleader suit is not sufficient to impute knowledge of actual date of hearing by the parties to the proceedings.

9.3. In view of the above said decisions, though they are not directly, in a straight jacket manner applicable to the facts and circumstances of the case, nevertheless, the guidelines that emanate from the judgments are that when the party’s address is not properly mentioned in the plaint, notice or summons and if they have been addressed to the wrong address, in such an eventuality, it is the burden on the plaintiff to establish that the summons were properly addressed to the correct address and the Court has to meticulously observe the same and thereafter record the sufficiency of service of the summons to the parties.

10. Applying the above said principles to this case, as I have already stated that there is difference in the address given in the plaint as well as notice issued by the plaintiff himself earlier to the filing of the suit.

11. The trial Court has failed to observe that there was minor discrepancy in the address mentioned. But, the subsequent conduct of the parties are considered by the Court. As I have already mentioned that there is difference in the address which creates a serious doubt as to whether the said summons were sent to the correct address of the defendant or not. When such being the case, in the absence of any evidence by the person who has actually went to affix the summons on the defendants property who is the proper person to say on which property he has affixed the summons which belongs to the defendant. In the absence of such evidence, it cannot be said that the service is sufficient. In my opinion, the trial Court has committed a serious error in not considering these facts and dismissing the petition on merits. Therefore, the appellant has to succeed sofar as this particular point is concerned.

12. Now, coming to the limitation point which is seriously disputed by the respondent herein. It is seen that the trial Court has decreed the suit exparte on 15.9.2005 and it was put into execution in EP No.305/2006 and the same was dismissed on 30.6.2009. But there is no material placed before the Court as to why that Execution Petition was dismissed. However, the fact remains that the petition was dismissed earlier.

13. Be that as it may, the prime important document relied upon by both the parties is Ex.R1 which is marked before the trial Court which is the crux of this particular case in order to ascertain the period of limitation and whether the petition before the trial Court was barred by limitation. Ex.R1 admittedly, written by the appellant to the Minister of Agriculture, Government of India, Krushi Bhavan on 3.3.2008. During the course of evidence, though the appellant has denied having written any letter to anybody, but after confronting of Ex.R1, the appellant has admitted that she has written a letter to the Minister of Agriculture as per Ex.R1 marking a copy to the respondent herein. The contents of this Ex.R1 play a dominant role in respect of the limitation point. It is seen that the letter starts with the subject – 'Dispute amounting to harassment by the Director and the Librarian Indian Institute of Horticultural Research, Hessarghatta, Bangalore – appeal for redressal.' In this particular letter, it is stated by the appellant at the second page in the following manner:

'Here was a classical case of a struggling individual versus a powerful organization had no mechanism to fight with the system and to prove that the alleged missing journals were actually delivered. The Librarian who never acknowledged the receipt of the journal supplied to him, however sent registered letter regarding the alleged non receipt of journals. I am sure that your kind self can visualize the reasons behind this. The limit of the harassment was that a civil suit was filed against BCI Publications and even an order was obtained behind my back without my receiving even a single notice of intimation either from IIHR or the Civil Court. In fact the address used for the said purpose was different from the regular address of correspondence.

(Emphasis supplied)

14. Whether this particular underlined portion noted above amounts to an acknowledgment or knowledge of the appellant with regard to the disposal of any suit being exparte decree, is to be examined by the Court.

15. When it is clearly admitted that in the year 2008, a letter has been addressed, the expression made in the said letter play a dominant role, it is not that it is only stated that no single notice has been served on the appellant or by the Civil Court, but it is clear cut material that a civil suit was filed against BCI publication by means of using a wrong address as against the regular address for correspondence and an exparte order was taken. This fact clearly indicates that the allegations made against the respondent is that they have filed a suit with a wrong address and they have obtained some order behind the back of the appellant, so this clears the doubt that the defendant had knowledge of filing of the suit, and plaintiff obtained an order behind the back of the defendant and also that the address given in the civil proceedings is a wrong address. Therefore, it has to be explained by the appellant herein by means of cogent and convincing evidence as to how the appellant came to know about the disposal of the case before the civil Court and an order obtained by the respondent against the appellant and that a wrong address has been used by the appellant in that civil proceedings as on 03.03.2008.

16. In this background, the evidence of the parties before the Misc. Court, also to be taken into consideration. Except stating that the appellant has issued a letter as per Ex.R1 in order to show the diligence calling upon the respondent to furnish the details about the suit in order to prefer a Misc. Petition or an appeal nothing more has been elucidated. Mere addressing such letter is not sufficient if the respondent has not replied to the letter. What is the next course open to the appellant is also an important factor to be taken into consideration. It is not that the appellant is a rustic villager and does not know the legal proceedings, it is a – Partnership Firm having sufficient business as well as it has got its own legal entity in the eye of law. During the course of their business, they have to do lot of correspondence in connection with their business. The Court has to examine w

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hether the appellant was diligent or not. Admittedly, this letter was written on 3.3.2008 and that letter was not replied. Can it be said that the appellant could wait for a period of five years without making any enquiry with regard to the exparte decree obtained and thereafter, he could have obtained certified copies and filed the Misc. Petition before the Court. During this point of time, i.e., from 3.3.2008 to 15.4.2011 what effort has been made by the appellant in order to show the diligence is the important factor that the courts have to look into. Otherwise, if such attitude of the parties are allowed, then there is no question of rejecting any limitation application and simply the application should be allowed only on mere allegations that the party has exercised due diligence and made all his efforts. Those efforts and diligence have to be supported by way of evidence before the Court. As I have already referred to the evidence there is nothing on record to show as to what effort that has been made from 3.3.2008 to 15.4.2011 except saying that he has written a letter as perEx.R1 and waiting for the reply from the other side. 17. Looking to the above said facts and circumstances of the case, the delay definitely can only be condoned if a sufficient cause is shown and diligence is shown on the part of the appellant. In the absence of such materials, the Court always should not help the person who is not diligent in prosecuting his cases. In the facts and circumstances of the case, as I have said that the appellant has to succeed on the first point, but he has to fail sofar as second point is concerned. 18. The trial Court considering the documents placed before it has come to the conclusion that the Misc. Petition No.305/2011 is hopelessly barred by limitation. There cannot be any deviation from the above said observation of the trial Court. Therefore, I proceed to pass the following: ORDER The appeal is dismissed.
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