Madugula Kanakadurga vs Bollapraguda Kameswari and Others

V. Bhaskara Rao, J.—The order in I.A. No. 80/97 in O.S.No. 313/89 on the file of Principal District Munsif, Narsapur, dt. 27-3-1997, refusing to set aside the ex parte order dt. 10-11-1989 in the suit under Order IX Rule 7 C.P.C. is challenged in this Revision Petition by D.1 herein.

The petitioner herein filed her affidavit in support of her petition stating that her son (D.2) informed her about the suit and she learnt that she was set ex parte on 10-11-1989. She asserted that her husband never married R.1 herein and that she is enjoying the family pension of her husband till this date and hence she wants to contest the suit. She asserted that R-l deliberately avoided to send summons to her with a view to deprive her of the pension and hence the ex parte order dt. 10-11-1989 may be set aside and she may be permitted to file a written statement.

R.1 plaintiff filed a counter denying the material averments. She asserted that she is the wife of late Madugula Satyanarayana and that her husband filed O.P. No. 36/74 on the file of Subordinate Judge''s Court, Narsapur, and sought for divorce from petitioner on the ground of adultery and the same was allowed and later he married this respondent and hence the petitioner has no right to enjoy the family pension of her husband. It is also stated that the petitioner failed to attend the Court want only and that she was set ex parte on 8-12-1989 and if at all she was interested she would have filed a petition immediately.

The Revision Petitioner examined herself as P.W.I and the suit summons dt. 18-11-1989 is marked as Ex.C-1. The learned Munsif considered the above evidence and held that she refused the summons and thereupon she has been set ex parte on 19-1-1990 and hence she has knowledge about the proceedings but she did not state in her evidence as to why she was prevented to attend the Court and accordingly the petition has been dismissed.

In this Revision Petition, Sri Parabrahma Sastry, learned Counsel for the revision petitioner contended that Order V Rule 19-A C.P.C. requires issue of summons by Registered Post in addition to and simultaneously with the summons through Court and that it is a mandatory provision and since the above provision has not been complied with, it is a fit case for setting aside the ex parte order. He relied on Lakshmi Narasimham v. Ramaiah Gupta, 1981 (1) ALT 76 and N. Muthaiah and Others Vs. Kamireddy Lakshmamma, . The petition is vehemently opposed by Sri Chidambaram, learned Counsel for the respondents. He pointed out that the petitioner had refused to accept the summons tendered by the process server and that the process server had affixed the duplicate on the door of her house and filed a sworn statement to that effect as required by Rule 19 Order V, C.P.C. and that Rule 19-A Order V has also been complied with as summons by Registered Post was issued in the first instance. He further argued that the suit is at the fag end of the trial and hence the petitioner cannot be permitted at this stage to file a written statement. He relied on Sarbeswar Ghosh Vs. Manab Kumar Sajjan and another, and Bhagwan Gold and Silver Store, Rewari Vs. Hissar Iron and Mechanical Works, .

The question is whether the revision petitioner has assigned a good cause for her non-appearance on 10-11-1989 and other subsequent dates of hearing. In the affidavit as well as in her deposition it is asserted that she has no knowledge of the proceedings and that no summons was served upon her. Ex.C-1 summons shows that the process server had tendered the same to the petitioner and she refused to receive the same and thereupon the duplicate thereof was affixed to her door. I have perused Ex.C-1 and the sworn statement of the process server and its verification by the concerned Deputy Nazar and I have no hesitation to hold that the revision petitioner had refused to receive the summons in this case. Be that as it may.

Sri Parabrahma Sastry strenuously contended that in addition to Ex.C-1 summons the learned Munsif should have issued summons by Registered Post simultaneously as required by Rule 19-A Order V, C.P.C. but the learned Munsif did not comply with the above mandatory requirement and hence Ex.C-1 may be ignored. Sri Chidambaram, learned Counsel for the respondents, however, refuted the same and stated that summons by Registered Post was issued for the first hearing and that Rule 19-A of Order V, C.P.C. has been complied with. The lower Court record has been sent for in order to resolve the above controversy. A perusal of the proceedings sheet shows that summons and Registered Post summons were issued simultaneously for the first date of hearing as is evident from the office note and the docket order dt. 10-11-1989. D.3 and D.4 have been set ex parte on that day and fresh summonses were issued to D.1 and D.2 for the second date of hearing i.e. 8-12-1989. Registered Post summons were not issued for 8-12-1989. A reading of Rule 19-A of Order V C.P.C. shows that the word ''shall'' is employed therein but the proviso thereto empowers the Court to dispense with Registered Post service where the Court considers it unnecessary. Hence, a combined reading of the main Rule with proviso will undoubtedly show that it is not a mandatory provision. I am fortified in my view by the decision cited Supra (3). Since summons by Registered Post was issued for the earlier date of hearing, the learned Munsif appears to have thought that the same is not necessary for every date of hearing. Then it so happened that the summons through Court was refused by the revision petitioner and the docket sheet dt. 19-1-1990 shows that the presiding officer has recorded in so many words that the service was held sufficient and D.1 was set ex parte. In that view of the matter, there does not appear to be any illegality in not issuing summons by Registered Post subsequent to the first date of hearing.

Turning to the case law cited by Sri Parabrahma Sastry it is seen that Supra (1) deals with another mode of service namely substituted service and lays down certain principles for ordering substituted service and hence it is in no way helpful to the petitioner. In the next case, Supra (2), summons by Registered Post was not issued at all unlike the case on hand where it was issued for the first date of hearing and hence this is also distinguishable on facts.

Thus, it follows that the revision petitioner had knowledge of the proceedings and for reasons best known to her she chose to remain ex parte for nearly eight years. She admitted that her son has been meeting her every now and then and being the source of her knowledge as per her own assertion she must be following the events and at the fag end of the trial, she has chosen to file this petition but she has not assigned any reasons acceptable to any prudent person for her non-appearance before the Court for nearly eight years. In these circumstances, the learned Munsif has rightly dismissed the petition.

I am unable to find any merit in this Revision Petition and the same is accordingly dismissed but without costs.