M/S. Emess Advertising Service v. The Hindustan Times Ltd. .

Factual and Procedural Background

This opinion concerns an appeal by M/s. EMESS Advertising Service (appellant-defendant) against an order dated 31 January 1996 of the learned single Judge dismissing an application (I.A. 2026/91) under Order IX Rule 13 read with Section 151 CPC to set aside an ex parte decree dated 5 February 1991 in Suit No. 227/88. The suit for recovery (filed by Hindustan Times Limited on 15 January 1988) sought recovery of money claimed for advertisement dues.

The appellant alleges that it became aware of the suit only on the evening of 5 February 1991 when the proprietor's husband contacted an advocate, who informed them that a case was pending and listed in the High Court. On 6 February 1991 the husband engaged counsel; an application for inspection was filed on 7 February 1991 and inspection occurred on 12 February 1991. The opinion also records that the application to set aside the decree is said (in the text) to have been filed on 25 February 1991 and elsewhere mentions that the application was filed on 5 March 1991.

Prior proceedings show multiple unsuccessful attempts to serve summons on the appellant. The respondent obtained an order on 6 March 1990 under Order V Rule 20 CPC directing service by publication for a hearing fixed for 26 July 1990. The summons by publication was published in the Statesman dated 9 April 1990, and a copy of that newspaper was sent by certificate of posting on 9 April 1990 to the appellant at the address shown in the plaint (2881, Hardhian Singh Road, Karol Bagh, New Delhi). No one appeared for the appellant on the specified date, the respondent led evidence on affidavits, and an ex parte decree for recovery (recorded in the opinion as Rs. 7,09,491/62 p with interest at 12% per annum) was passed on 5 February 1991.

Legal Issues Presented

1. Whether the ex parte decree dated 5 February 1991 could be set aside under Order IX Rule 13 read with Section 151 CPC on the grounds of non-intentional non-appearance by the appellant.
2. Whether service by publication (under Order V Rule 20 CPC) and the certified postal copy to the address in the plaint sufficed to attract the presumption of service in favour of the respondent under Section 114 of the Evidence Act.

Arguments of the Parties

Appellant's Arguments

• The application states that Smt. Vimla Sharma (proprietor) was not aware of the pendency of the suit until the evening of 5 February 1991.
• Upon learning of the listing, the appellant promptly engaged counsel (on 6 February 1991), applied for inspection (7 February 1991) and inspected the file (12 February 1991), and thereafter moved to set aside the decree—asserting that non-appearance was not intentional.
• Prayed for setting aside the ex parte decree and for time to file a written statement.

Respondent's Arguments

• The respondent contended the appellant had been keeping vigil on the court proceedings without causing an appearance and was aware of the suit's pendency earlier than alleged.
• It denied that the appellant was informed of the listing only on 5 February 1991 and asserted that the non-appearance was intentional and deliberate.
• Maintained that the application to set aside the decree should be dismissed, and sought costs.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reviewed the procedural history and the material placed on record. Key points of the court's analysis were:

1. The respondent's suit (No. 227/88) for recovery was filed on 15 January 1988. After six unsuccessful attempts to serve the summons, the respondent obtained an order under Order V Rule 20 CPC (I.A. 307/90) on 6 March 1990 permitting service by publication, with summons to be deemed served for the hearing on 26 July 1990.
2. The record showed that summons by publication appeared in the Statesman dated 9 April 1990 and that a copy of that newspaper was sent by certificate of posting on the same date to the appellant at the address stated in the plaint (2881, Hardhian Singh Road, Karol Bagh, New Delhi).
3. The affidavits supporting I.A. 2026/91 (by Smt. Vimla Sharma and Shri Yograj Sharma, Advocate) were silent as to two critical matters: that the address in the plaint was not the appellant's address when the suit was instituted, or that the Statesman issue of 9 April 1990 (containing the summons) was not delivered to the appellant at that address.
4. Because those facts were not rebutted, the court held that the statutory and evidentiary presumption (referred to in the opinion as arising under Section 114 of the Evidence Act) favoured the respondent — i.e., the presumption that service by publication and posting had occurred. In consequence, the application for setting aside the ex parte decree did not disclose sufficient grounds for relief under Order IX Rule 13 read with Section 151 CPC.
5. On this basis the learned single Judge's dismissal of I.A. 2026/91 was held to be justified.

Holding and Implications

Appeal dismissed.

Direct effect: The impugned order dismissing the application to set aside the ex parte decree is upheld and the ex parte decree dated 5 February 1991 remains in force. The appeal was dismissed with no order as to costs.

No broader implications or new legal precedents are discussed in the opinion; the decision resolves the dispute between the parties on the specific facts and procedural record presented.