Ganga Ram Agarwal vs National Small Industries ...
1996 Latest Caselaw 57 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is an appeal directed against the order of the learned Single Judge dated May Ii, 1994, in I.A. Nos. 9194 and 9195/91 in Suit No. 201/81 whereby the learned Single Judge refused to set aside the ex parte decree passed against the appellant on February 25, 1985 and also refused to condone the delay in filing the application under Order 9 Rule 13. The short facts which are necessary for the disposal of the appeal are as under:

(2) The appellant and respondent 3 to 5 were partners of respondent No.2, a partnership firm operating under the name and style of M/s. Poddar Industrial Corporation, Beliganj Rae Bareilly, U.P. The partnership was engaged in the manufacture of cycle and rickshaw tyres and tubes. In the year 1972 the partnership acquired four machines for manufacture of cycle and rickshaw tyres and tubes pursuant to a hire purchase agreement executed with the first respondent (plaintiff in the suit). According to the agreement the hire money was to be paid to the first respondent in instalments by the partnership. On February 3, 1978 the appellant is stated to have given a notice to respondents 3 to 5 intimating them that he was withdrawing from the partnership. According to the appellant he believed that by serving the notice he had severed all links with the partnership. It is the case of the appellant that soon thereafter he left Rae Bareilly and settled in Village Tikunia, Tehsil Nighasan, District Kheri, U.P., where initially he started his business but subsequently in the year 1981 took employment as an Accountant in some flour mill in the same village. On January 16, 1981, the first respondent- plaintiff filed a suit against respondent No.2 partnership and partners-respondents 3 to 5 and the appellant for recovery of a sum of Rs.4,44,892.65. In the suit summons were directed to be issued on March 17, 1981, to appellant and respondents 2 to 5. The last known address of the appellant with the first respondent was of Beliganj, Rae Bareilly, U.P., and that address was given by the first respondent in the plaint as well. Summons issued to the appellant as a consequence of the order of the court were received back unserved with the endorsement of the process server that the appellant does not reside at the given address. Again on April 28, 1991, fresh summons were directed for being sent to the appellant but the summons were again received back unserved with the same report as before. Third time again fresh summons were ordered to be sent to the appellant on September 3, 1981, but the appellant could not be served as the report was the same that he does not reside at the given address. Ultimately, first respondent filed an application under Order 5 Rule 20 of the Code of Civil Procedure for substituted service on the appellant. The application was accepted on March 22, 1982 and a direction was given for service of the appellant by substituted service by publication of the notice in NavBharat Times, Hindi Edition, for May 5, 1982. Accordingly, the notice was published in Nav Bharat Times, but there was no appearance of the appellant on that date. Since the appellant did not appear on the subsequent date, viz., November 2, 1982, as well, he was set ex parte. The other respondents who were originally appearing in the court through counsel subsequently failed to put in their appearance. As a result of the nonappearance of the appellant and the other partners the court was left with no alternative but to pass an ex parte decree for a sum of Rs-4,44,892.65 with interest at the rate of 12% per annum in favour of the first respondent and against the appellant and respondents 2 to 5.

(3) It is stated by the appellant that on May 8, 1991 he came to Rae Bareilly in connection with the illness of his mother when he met respondent No.4 who told him that decree had been passed against the partnership firm and its partners by the learned Single Judge and execution proceedings were pending in the court of Civil Judge, Rae Bareilly. Appellant had the record inspected of the execution case on May 10, 1991, and on the same date filed an application before the Civil Judge, Rae Bareilly, under Order 21 Rule 6 of the Code of Civil Procedure seeking stay of the execution proceedings in order to enable him to File an application for setting aside the ex parte decree passed by the learned Single Judge of this Court. The appellant was successful in obtaining an order staying the execution of decree till July 20, 1991, which order was extended upto August 30, 1991. On June 4, 1991, the appellant came to Delhi to engage a counsel for the purpose of taking steps for filing an application for setting aside of the decree. However, the appellant was told that the court was closed for summer vacation and the requisite steps could be taken on the reopening of the court. The appellant again came to Delhi on July 12, 1991, and engaged a counsel who inspected the record on July 15, 1991. Ultimately, on May 10, 1991, the appellant moved and application under Order 9 Rule 13 for setting aside of the ex parte decree dated February 25, 1985, along with an application for condensation of delay in filing the application. However, the learned Single Judge did not believe the explanation given by the appellant in not appearing in the suit and in not filing the application for setting aside of the ex parte decree within the period of limitation and dismissed the application on May 11, 1994. It is this order of the learned Single Judge which has been challenged before us.

(4) Learned counsel for the appellant submitted that the total claim of the first respondent could not exceed Rs-2,26,856.80, and in support of his submission he alluded to the latter's legal notice dated January 31, 1980, to the partnership in which the said sum of money was claimed along with the interest from former. Learned counsel further canvassed that the learned Single Judge was not right in dismissing the applications as he had actually been staying at Tikunia and had no knowledge of the suit which was going on against the partnership in Delhi. He also pleaded that NavBharat Times does not have readership in Rae Bareilly and at the most only 50 copies are sold in the city. He also submitted that there was no material to disbelieve the statement of the appellant that it was only on May 8, 1991 that he came to know about the passing of the ex parte decree by the learned Single Judge of this Court, and after he acquired knowledge of the same he took steps in the right earnest in getting the decree set aside and for that purpose filed an application under Order 9 Rule 13 and an application for condensation of delay.

(5) On the other hand, learned counsel for the first respondent submitted that the appellant had given his Rae Bareilly address to the First respondent and at no point of time the former had intimated the latter about the change of his address. Therefore, the first respondent had no option but to send summons at the Rae Bareilly address of the appellant. When the summons were returned number of times and it was not possible to serve the appellant in the ordinary course, the First respondent made an application for substituted service. The service was duly effected on the appellant as an advertisement was taken out in this regard in NavBharat Times having circulation in Rae Bareilly, the last known place of abode of the appellant. The learned counsel submitted that there was no infirmity in the order passed by the learned Single Judge and as such the appeal should be dismissed.

(6) We have considered the submissions of the learned counsel for the parties. The first respondent has not been able to controvert the assertion of the appellant that after his departure from Delhi he was staying in Tikunia in District Kheri, U.P. If that is so, the substituted service carried out was not effective as there is nothing to show that Nav Bharat Times has any circulation in Tikunia. We have the affidavit of the appellant which slates that he had not come across the newspaper in which the notice was issued. In the circumstances we are of the opinion that the interests of justice would have served if the appellant is directed to deposit with the first respondent a sum of Rs. 56,714.20 (l/4lh of Rs.2,26,856.80, the amount mentioned in the said notice of respondent dated January 31, 1980) with interest at the rate of 12% per annum from the date of the suit till the date of the deposit, and the ex parte decree would be set aside in case the said amount is deposited within six weeks from the date of this order. We order accordingly. In case the amount is not so deposited, the appeal of the appellant will stand dismissed. With these observations the appeal is disposed of. No costs.