M/S.The Plant Protection ... vs Konda Sekhar Reddy
2023 Latest Caselaw 4294 AP

     HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

     + CIVIL MISCELLANEOUS APPEAL No.153 of 2018

Between:

#1.    M/S The plant protection products private limited,
       Nellore. Represented by its Managing Director Vemuru
       Radha Krishna, S/o. late Lakshmaiah, Hindu, Aged
       about 66 years, Residing at Flat No. SA-2d Floor
       Sri Venkatasai Residency, Konda Balarami Reddy
       Street, Raja Gopalapuram, Dargamitta, Nellore- 3.

                                           ...   Appellant
                             And

$ 1. Konda Sekhar Reddy
     S/o. Yanadi Reddy, Hindu, Agriculturist,
      Aged about 48 years, Residing at 15/717,
     James Garden, Nellore- 2.
                                        ...     Respondent


JUDGMENT PRONOUNCED ON 15.09.2023

      THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1.     Whether Reporters of Local
       newspapers may be allowed to see
                                                  -   Yes -
       the Judgments?

     2. Whether the copies of judgment may
        be marked to Law Reporters/Journals       -   Yes -

     3. Whether Their Ladyship/Lordship
        wish to see the fair copy of the
                                                  -   Yes -
        Judgment?

                         ___________________________________
                         DR.JUSTICE K. MANMADHA RAO
                                    2




      * THE HON'BLE DR.JUSTICE K. MANMADHA RAO
   + CIVIL MISCELLANEOUS APPEAL No.153 of 2018


% 15.09.2023

Between:

#1.   M/S The plant protection products private limited,
      Nellore. Represented by its Managing Director Vemuru
      Radha Krishna, S/o. late Lakshmaiah, Hindu, Aged
      about 66 years, Residing at Flat No. SA-2d Floor
      Sri Venkatasai Residency, Konda Balarami Reddy
      Street, Raja Gopalapuram, Dargamitta, Nellore- 3.

                                               ...     Appellant
                                And

$ 1. Konda Sekhar Reddy
     S/o. Yanadi Reddy, Hindu, Agriculturist,
      Aged about 48 years, Residing at 15/717,
     James Garden, Nellore- 2.
                                        ...     Respondent

! Counsel for the Appellant        :      Sri P. Rajasekhar


Counsel for Respondent:                   Sri P. Sridhar Reddy



<Gist :
>Head note :
?Cases referred :

   1. Law Finder Doc Id# 1971606

   2. (2019) 2 Gauhati Law Reports 202

   3. (2008) 17 Supreme Court Cases 491
                                  3




         HON'BLE DR. JUSTICE K. MANMADHA RAO

         CIVIL MISCELLANEOUS APPEAL No.153 of 2018

JUDGMENT:

The present Appeal is preferred by the appellant

aggrieved by the order dated 23.10.2017 passed in

I.A.No.1517 of 2011 in O.S No.173 of 2010 on the file of I

Additional District Judge, Nellore (for short "the trial

Court").

2. The impugned application has been filed by the

appellant/defendant/petitioner before the trial Court under

Order IX Rule 13 CPC seeking to set aside the ex parte

decree passed against him on 26.11.2010 and permit him to

contest the matter and for costs.

3. Originally the suit in O.S No.173 of 2010 was filed

by the respondent/plaintiff for grant of specific performance

of agreement of sale dated 11.12.1995 alleged to have been

executed by the appellant/defendant and thereupon in the

said suit the respondent/plaintiff obtained ex parte decree

vide judgment and decree dated 26.11.2010 by the trial

Court. It is stated that the appellant/defendant was not

served with summons in the above suit or in the I.A or in

the E.P and further he never resided in Flat No.S-A,2 2nd

floor, Sri Rajagopalapuram, Dagramitta, Nellore. The

appellant/ defendant left Nellore long back and has been

residing in Chennai. It is further stated that the

appellant/defendant filed I.P No.3 of 2001 in January 2001

and he was taken into illegal custody and was threatened to

kill in encounter and forcibly obtained a sale deed on

22.1.2001 for the period of 6 years for the first floor in the

suit schedule property. The respondent/plaintiff obtained

his signatures on white papers and stamped papers.

Thereafter, Union Bank of India filed O.A No.23.4.2002

against the appellant/defendant before the Debt Recovery

Tribunal, Visakhapatnam, and in that O.A., One Lakku

Krishna Reddy paid a sum of Rs.50 Lakhs to the Union

Bank of India towards his debt. Thus the appellant sold

the suit schedule property in favour of Lakku Krishna Reddy

for a consideration of Rs.48,34,000/- and put him in

possession. The respondent/plaintiff with the connivance of

the Process Server got a false and forged endorsement and

stated that the said Process Server never visited him and

never signed on the summons relating to the above said

suit. The respondent/plaintiff obtained ex parte decree by

playing fraud on him. Hence, the appellant/defendant filed

the impugned I.A.No1571 of 2011 under Order IX rule 13

CPC to set aside the ex parte decree.

4. The respondent/plaintiff filed counter denying all

the allegations made in the petition. It is further stated that

as submitted by the appellant/petitioner that he was not

resident of Rajagopalapuram, Dargamitta, Nellore and the

suit summons were not served on him are false. The

petitioner has created the registered sale deed dated

27.12.2010 in favour of Lakku Krishna Reddy covers the

property that are already sold by the petitioner in favour of

this respondent. Thus the sale deed is bogus one and not

supported by consideration. It is mainly contended that the

petitioner has no locus standi to file application. Hence,

prayed to dismiss the petition.

5. During the course of trial, on behalf of the

petitioner, PWs.1 and 2 were examined and Ex.A1 to Ex.A6

were marked. On behalf of respondent, RWs.1 and 2 were

examined and Ex.B1 to Ex.B7 were marked.

6. Basing on the above pleadings, the trial Court

framed the following points for consideration:

1. Whether there is due service of summons on the defendant?

2. Whether the petition is maintainable?

7. After careful consideration of the material and on

considering the oral and documentary evidence, the trial

Court has dismissed the said application on the ground that

the petitioner has not come to the Court with clean hands

though the document prima facie and glaringly appear the

service of summons on the defendant and also held that the

petitioner failed to substantiate his pleas in the

affidavit/petition by any cogent evidence. Aggrieved by the

same, the present Civil Miscellaneous Appeal came to be

filed.

8. Heard Sri P. Rajasekhar, learned counsel

appearing for the appellant and Sri P. Sridhar Reddy,

learned counsel appearing for the respondent.

9. During hearing, learned counsel for the appellant

submits that the order of the trial Court judge is contrary to

law, weight of evidence and probabilities of the case. He

submits that the trial Court ought to have allowed the I.A

instead of dismissing the same. He further submits that the

Court below failed to see that the respondent/plaintiff has

not followed the requirements of CPC while showing the

address of appellant/defendant company in the plaint and

has deliberately shown the address which belongs to a third

party unconnected to the company and also failed to see

that the plaintiff failed to establish that the address shown

in the plaint earlier belongs to the defendant company or to

its Managing Director and hence the service on the same is

a valid service. He further submitted that the Court below

failed to see that a person who is an occasional visitor to a

particular premises, cannot be considered as a resident of

the same and the service of summons on him at that

premises is not in accordance with law. He mainly

contended that the Court below failed to see that the

plaintiff has adopted manipulative means to mislead the

Court regarding the service of summons on the MD of the

defendant company at an address which does not belong to

the company at all and also failed to see that the evidence of

PWs.1 and 2 has established the non service of summons in

the suit and hence the I.A is to be allowed. In view of the

same, learned counsel for the appellant requests this Court

to set aside the impugned application and pass appropriate

orders.

10. To support his contentions, learned counsel for

the appellant has relied upon a decision of Hon'ble Supreme

Court reported in M/s Jersey Developers (P) Limited &

Ors. Versus Canara Bank1, wherein the Hon'ble Apex Court

held that :

Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned 'unclaimed' as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice.

4. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court as well as the order passed by the learned Trial Court dated 17.03.2015 passed in I.A.

No.6778 of 2014 in OS No.3749 of 2003 dismissing the application to set aside the exparte decree are hereby quashed and set aside. The exparte judgment and decree passed by the learned Trial Court in OS No.3749 of 2003 is hereby quashed and set aside and the original suit is ordered to be restored on the file of the learned Trial Court, which shall be decided and disposed of by the learned Trial Court in accordance with law and on its own merits

Law Finder Doc Id# 1971606

11. Learned counsel for the appellant has also placed

reliance on another decision reported in Plethico

Pharmaceuticals Ltd. Versus Zenith Drugs and Allied

Agencies (P) Ltd2, wherein the Hon'ble Apex Court held

that:

18. Order XXIX Rule 2 CPC provides that subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served (a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

19. The meaning of Clause (b) has got to be understood in the background of the provisions of Order V Rule 17 CPC, which is meant for issue and service of summons on natural persons. Sending summons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. It has to be understood that if the serving peon or bailiff is not able to serve summons on the Secretary or Director or any other principal officer of the corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summons at the registered office of the company and make a report to that effect.

25. From the above, it is manifestly clear that it is the knowledge of the date of hearing and not the knowledge of the pendency of the suit, which is relevant for the purpose of considering an application under order IX, rule 13, CPC to set aside an ex parte decree. Viewed in the aforesaid context, there was no suppression of material facts in the appli- cation filed under order IX, rule 13 read with section 151, CPC and the decision in V Chandrasekharan (supra), which emphasized that a petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of the procedure of the court, is not attracted."

(2019) 2 Gauhati Law Reprots 202

12. Learned counsel for the appellant while placing

reliance on the above decisions, submits that, it has to be

understood that if the serving peon or vailiff is not able to

serve summons on the concerned person is not to be found

by the serving person even after due diligence then he can

leave the summons at the registered office of the company

and make a report to that effect. In the present case, the

respondent/plaintiff with the connivance of the Process

Server got a false and forged endorsement. Therefore,

learned counsel submits that the order of the trial Court is

liable to be set aside.

13. Per contra, learned counsel for the respondent

submits that the reason given by the appellant/defendant is

not sufficient to set aside the ex parte decree and that there

are no bonafides in the petition. He further submits that

the summons was duly served on the appellant/defendant

at his residential address. He further submits that the

appellant/defendant remained ex parte in the E.P. and the

sale deed was got executed through process of Court and

the said EP was already closed. He further contended that

the defendant has created and executed the registered sale

deed dated 27.12.2010 in favour of Lakku Krishna Reddy.

The said action covers the property that was already sold by

the defendant in favour of the plaintiff/respondent. Thus,

the sale deed is a bogus one and not supported by

consideration. He mainly contended that there are no

merits in the application and the appellant/defendant has

no locus standi to file application before the trial Court and

the trial Court has rightly dismissed the application in

proper manner and hence prayed to dismiss the appeal.

14. To support his contentions, learned counsel for

the respondent has relied upon a decision of Hon'ble

Supreme Court reported in Bachhaj Nahar Versus Nilima

Mandal and another3, wherein it was held that :

The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad vs. Shri Chandramaul - AIR 1966 SC 735 :

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence.

The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matter relating to the title of both parties to the suit was touched, tough indirectly or even obscurely in the issues, and evidence has been led about them then the argument that a particular matter was not

(2008) 17 Supreme Court Cases 491

expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

(emphasis supplied) The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR 1987 SC 1242]:

"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."

[emphasis supplied]

12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that

the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.

15. On perusing the material available on record, this

Court observed that, the respondent/plaintiff has filed a suit

in O.S No.173 of 2010 before the trial Court for grant of

specific performance of agreement of sale dated 11.12.1995

alleged to have been executed by the appellant/defendant

in favour of the respondent/plaintiff.

16. On hearing the submissions of learned counsel

for the appellant, this Court observed in the deposition of

PW.1, who is the appellant herein has deposed in his chief

examination that he was not served any summons in the

above suit or in Interlocutory application or in the E.P and

he never resided in Flat No.S-A, 2nd floor, Sri Venkatsai

Residency, Kondabalaramireddy street, Rajagopalapuram,

Dargamitta, Nellore-3. He further deposed that he left

Nellore long back and residing in Chennai.

17. Further, in the deposition of RW.2, it is observed

that, RW.2 clearly deposed in his chief examination that the

appellant-Radha Krishna shifted his residence from Nellore.

He used to visit Nellore now and then and used to stay in

Flat No.S-A, 2nd floor, Sri Venkata Sai Residency, Konda

Balarami Reddy Street, Dargamitta, Nellore-3. The said flat

is owned and possessed by A.H.V.N.Rajasekhar, who is

staying at Hyderabad. One A.Ravi, younger brother of the

said Rajasekhar used to reside in the said flat. He deposed

that Vemuru Radha Krishna is friend of the said Ravi. Thus

the said Radhakrishna used to stay with the said Ravi

whenever he used to visit Nellore on his business work. In

the cross-examination, RW.2 stated that he does not know

the business activities of PW.1, but he knows him personally

for more than 10 years. He admitted in his cross-

examination that PW.1 wound up the business about 15

years back and shifted to Chennai.

18. As seen from the material available on record at

page Nos.43 and 72 of additional papers, it clearly reveals

that the sale deed dated 11.12.1995 said to have been

executed by the Plan Protection Products (P) Limited,

represented by Managing Director, Sri Vemuru Radha

Krishna, age 50 years, S/o Late Lakshamaiah,

D.No.16/1176, Kasturidevi Nagar, Pogatota Nellore in favour

of Konda Sekhar Reddy, S/o. late Yanadireddy,

D.No.16/II/313, Srinivasa Agraharam, Nellore Town.

19. It is the contention of the appellant that the

appellant is a limited company and due to several reasons,

the industry was become sick and now it is not functioning.

However, while availing the loan facility, this appellant

mortgaged several properties in favour of the bank.

20. It is the contention of the respondent that it is

well settled that in the absence of pleading evidence, if any,

produced by the parties cannot be considered. It is also

equally settled that no party should be permitted to travel

beyond its pleading and that all necessary and material

facts should be pleaded by the party in support of the case

set up by it. It is further contention of the respondent

counsel that in order to have a fair trial, it is imperative that

the party should settle the essential material facts so that

other party may not be taken by surprise. There is no

pleading about the registered company before the trial court.

This respondent has not played any fraud before the Court.

The sale deed executed in favour of Lakku Krishna Reddy

covers the property that was already sold by the appellant in

favour of this respondent.

21. It is relevant to mention here that, Order IX Rule

6(b) of CPC, reads as follows:

Order 9 Rule 6 of Code of Civil Procedure 1908 - Procedure when only plaintiff appears

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly served.- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;

(b) When summons not duly served.- if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time.- if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement

22. It is also to be noted, Order V Rule 9 CPC:

9 Delivery of summons by Court.-

(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 either 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 is such an officer, the summons may be sent to him in such 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 (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:

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

(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 authorised 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 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 the acknowledgment having been lost or mislaid, or for any 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 of courier agencies for the purposes of sub-rule (1).

23. And also relevant to be noted that, Order 9 Rule 13

CPC :

Order 9 Rule 13 provides a remedy for the defendant to apply to set aside the ex-parte decree which was passed due to the non- appearance of the defendant in the civil suit. The court only sets aside the ex-decree when the defendant presents a satisfactory reason in court or the summons is not served well.

Viewed from any angle, it is observed that, it is not a case of a mere irregularity of service of summons, but is a case of non- service of summons and drawing of presumption of service of summons y the trial Court in an improper exercise of discretion though there is no controversy that the appellant was aware of the pendency of the suit, nothing has been brought on record to indicate that the appellant was also aware of the date of hearing.

24. Having regard to the facts and circumstances, it

is relevant to mention about service on Corporation under

Order XXIX CPC, the suits by or against Corporations. As

per Order XXIX Rule 2(b) CPC, reads as under:

2. Service on corporation : - Subject to any statutory

provision regulating service of process, where the suit is

against a corporation, the summons may be served -

(a)....

(b) by leaving it or sending it by post addressed to the

corporation at the registered office, or if there is no

registered office then at the place where the corporation

carries on business.

25. On a perusal of the above, the meaning of Clause

(b) has got to be understood in the background of the

provisions of Order V Rule 17 CPC, which is meant for issue

and service of summons on natural persons. Sending

summons to a corporation by post addressed to it at its

registered office may be a good mode of service either by

itself or preferably by way of an additional mode of service.

it is also observed that, if the serving peon or bailiff is not

able to serve summons on the Secretary or Director or any

other principal officer of the corporation because either the

refuses to sign the summons or is not to be found by the

serving person even after due diligence then he can leave the

summons at the registered office of the company and make

a report to that effect. Therefore, in view of the above, it is

crystal clear that it is the knowledge of the date of hearing

and not the knowledge of pendency of the suit, which is

relevant for the purpose of considering an application under

order IX Rule 13 CPC to set aside an ex parte decree.

26. Having regard to the facts and circumstances of

the case, this Court is of the view that the trial Court failed

to exercise its jurisdiction in accordance with law and

committed illegality in not setting aside the ex parte decree.

Therefore, this Court is inclined to allow the present appeal

27 . Accordingly, the Civil Miscellaneous Appeal is

allowed. The impugned order 23.10.2017 passed in

I.A.No.1517 of 2011 in O.S No.173 of 2010 by the trial

Court is hereby set aside. Further, the trial Court is directed

to dispose of the suit, as expeditiously, as possible,

preferably, within a period of four (04) months from the date

of a copy of this order. There shall be no order as to costs.

28. As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 15 -09-2023 Note : L.R Copy to be marked.

(b/o)Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL MISCELLANEOUS APPEAL No.153 of 2018

Date : 15 .09.2023

Gvl