P. S. NARAYANA, J. ( 1 ) THIS Civil Revision Petition is filed by the revision petitioner-respondent-plaintiff in I. A-No. 1087 of 1998 in O. S. No. 844 of 1996 on the file of the First Junior Civil judge, City Civil Court at Secunderabad against an order dated 29-10-1998 whereunder an application to set aside the ex parte decree dated 31-1-1998 was allowed. ( 2 ) NO evidence was let in by both the parties. The learned First Junior Civil Judge, city Civil Court. Secunderabad had decided the application only on the basis of the affidavit filed in support of the application counter-affidavit and the reply affidavit and the allegations made therein. The learned Judge at Para 21 had observed as follows:"in the light of the above discussion, I hold that the petitioner/defendant satisfied this Court that the summons were not duly served on him and he has no knowledge about the suit proceedings prior to 21-7-1998. Therefore, this Court shall set aside-the ex parte decree dated 31-1-1998 under Or. 9 R. 13 C. P. C. on terms. That apart, this Court further holds that this petition having filed on 24-7-1998, is within limitation from the date of knowledge of suit proceedings. Hence the petition is liable to be allowed with costs. In the result, the petition is allowed with costs by setting aside the ex parte decree dated 31-1-1998 subject to filing of written statement by 19-11-1998. ( 3 ) THE respondent-petitioner-defendant in the suit in his affidavit had stated that on 21-7-1998 the bailiff came to the plaint schedule premises in their absence, broke open the lock and removed all their business belongings, machines worth about five lakh rupees and delivered possession to the revision petitioner-respondent-plaintiff which came to his knowledge only on 21-7-1998 through some one belonging to the neighbouring shop. It was further stated that they contacted Sri N. Raghavan, advocate who had collected information that ex parte decree was passed on 31-1-1998 and it was also specifically stated that it was not within their knowledge since neither the notices nor the summons were ever served on him. It was also further averred that the revision petitioner managed that summons in the suit were not served upon him and so also legal notice was not served upon him. It was also further averred that the revision petitioner managed that summons in the suit were not served upon him and so also legal notice was not served upon him. It was also stated that there was some demand for enhancement of rent and further it was averred he had sent rent for 29 months from 20-1-1995 to 20-6-1997 but it was also managed to be returned by the revision petitioner with the endorsement "party absent for seven days". It was also further averred that the rent collectors of the revision petitioner fully know that he has been carrying on manufacturing. business in the suit schedule premises and his son also had opened workshop at kavadiguda and taking advantage of the same they managed to see that neither notices nor the suit summons were served upon him. It was also specifically stated that the revision petitioner had deliberately concealed the residential address and had sent the notice and summons to the suit schedule premises that too during the days when the same might have been closed due to his nature of business. The respondent in his affidavit also had explained the reasons why the suit schedule premises will be under closure often. It was further stated that the revision petitioner taking advantage of the same in a preplanned manner had instituted the suit for recovery of possession, arrears of rent and mesne profits and got managed the summons to be as if affixed on the door but in fact they were never affixed. It was also further averred that the suit was dismissed and again it was restored arid an ex parte decree was passed and he had gathered all this information through his Counsel on 23-7-1998. It was also further averred that he was advised that under the law of limitation the limitation begins to run from the date of the actual knowledge and he got actual knowledge about the suit only when the Court bailiff came to the suit schedule premises and caused eviction in his absence on 21-7-1998 (night) and hence this application is filed to set aside the ex parte decree within thirty days from the date of his knowledge of the decree. However, it was further stated that by way of abundant caution he filed an application under section 5 of the Limitation Act to condone the delay of 143 days from 3-3-1998 to 23-7-1998. However, it was further stated that by way of abundant caution he filed an application under section 5 of the Limitation Act to condone the delay of 143 days from 3-3-1998 to 23-7-1998. ( 4 ) THE revision petitioner-plaintiff had filed a detailed counter-affidavit denying all the allegations and also narrating all the events. It was specifically stated that the decree was obtained in accordance with law and it was executed in accordance with law. It was stated that E. P. No. 100 of 1998 was filed for execution of decree on 1-5-1998 and the Court was pleased to pass orders on 2-5-1998 issuing warrant of execution and to report by 9-6-1998 and the bailiff submitted a report on 9-6-1998 that the suit schedule premises was found locked and unless permission was granted to break open the lock the decree cannot be executed and the court was pleased to pass an order granting permission to the bailiff to break open the lock and deliver possession and posted the execution petition to 26-6-1998. On 21-7-1998 when. the bailiff was taking steps to break open the lock with the help of police the respondent and his son had resisted the execution of the decree and made an attempt to create law and order problem. But, however with the assistance of police the decree was executed and possession was delivered to the revision petitioner-plaintiff. The allegation that the respondent came to know about the execution on the night of 21-7-1998 only was specifically denied. It was also specifically denied that they contacted sri N. Raghavan, advocate and he came to the Court on 22-7-1998 and 23-7-1998 and collected the information about the ex parte decree passed on 31-1-1998. All the other allegations that they have managed to see the summons and notices are not served on the respondent had been specifically denied. Further, it was averred that under sec. 114 (g) of the Indian Evidence Act any act done by the Officers of the Court including the process server will be deemed to have been done according to law and hence there is no question of managing the process server. The demand for enhancement of rent and managing to return the amount sent by the respondent also had been specifically denied. The demand for enhancement of rent and managing to return the amount sent by the respondent also had been specifically denied. It was also denied that they had deliberately concealed the residential address and they had taken notice to the suit schedule premises only at times when the premises was kept closed and that it was done in a preplanned manner. Ultimately it was stated that the allegation that the ex parte decree was obtained by misrepresentation and without notice is not correct and further the application is barred by limitation. ( 5 ) THE reply affidavit was also filed giving some explanation. Several of the facts averred may not be relevant for the purpose of deciding this application. ( 6 ) THE Court below after hearing both sides had allowed the application making an observation as stated supra and the relevant discussion is in paras 14 to 20 of the impugned order. The revision petitioner-plaintiff aggrieved by the order dated 29-10-1998 passed in I. A. No. 1087 of 1998 in O. S-No. 844 of 1996 on the file of the first Junior Civil Judge, City Civil Court, secunderbad, had preferred the present revision petition raising as many as eighteen grounds in detail. ( 7 ) SRI E. Manohar, learned Senior counsel, representing Sri S. Ganesh Rao, counsel for the petitioner, had strenuously contended that no evidence was let in by either of the parties and though several facts had been pleaded by the respondent defendant in the affidavit in support of the application, absolutely there is no proof since the mere filing of an affidavit will not constitute proof. The learned Counsel also had submitted that the affidavit does not constitute evidence within the meaning of indian Evidence Act and since all the allegations are specifically denied unless sufficient cause is shown and the allegations are substantiated by proof, application to set aside the ex parte decree, automatically cannot be allowed. It was also contended that the Court below had passed the impugned order only taking into consideration Or. 5 R. 20 C. P. C. read with art. 123 of the Limitation Act. The learned senior Counsel had further submitted that allowing an application to set aside an ex parte decree automatically on that ground when there are other facts and circumstances which go to show about the knowledge of the opposite party is bad in law and unsustainable. 5 R. 20 C. P. C. read with art. 123 of the Limitation Act. The learned senior Counsel had further submitted that allowing an application to set aside an ex parte decree automatically on that ground when there are other facts and circumstances which go to show about the knowledge of the opposite party is bad in law and unsustainable. The learned counsel had drawn my attention to several portions of the affidavit, counter-affidavit, reply affidavit and had submitted that these are all factual aspects which should have been proved by person who intends to have decree set aside. The learned Counsel making further elaborate submissions in this regard had pointed out several important aspects by virtue of which it can be taken that the respondent-defendant had knowledge about the suit proceedings and had deliberately avoided with a view to cause inconvenience to the revision petitioner-plaintiff. The learned Counsel also had placed reliance in Ramalingam v. Bhagwandas Mahesh Kumar Maheswari, Hindu undivided Family by Kartha Bhagwandas* and shanmnki v. Venkatammi Reddy. The learned counsel no doubt fairly conceded that in view of the subsequent amendment the view expressed by the Full Bench in shanmuki s case may not be of much consequence. The learned Counsel also had drawn may attention to the second proviso to Or. 9 R. 13 C. P. C. and had stated that this aspect was not considered by the court below at all. The learned Counsel further contended that summons endorsement by Amin forms part and parcel of the suit proceedings and two times summons were served by affixture and from 1995 the respondent was not paying any amount but he was carrying on business in the suit premises and he had sent money order for 29 months and further even notice dated 29-3-1996 under Sec. 106 of the Transfer of the Property Act was returned with an endorsement "party absent for 7 days" and it clearly goes to show that the respondent had knowledge about all these proceedings and hence the contention that, from the date of the knowledge an application was filed within time cannot be sustained. It was further submitted that the possession was taken by the revision petitioner-plaintiff and now the respondent-defendant is trying to have the restitution and if the decree is set aside at this stage, serious prejudice will be caused to the revision petitioner. It was further submitted that the possession was taken by the revision petitioner-plaintiff and now the respondent-defendant is trying to have the restitution and if the decree is set aside at this stage, serious prejudice will be caused to the revision petitioner. ( 8 ) SRI Raghavan, learned Counsel representing the respondent-defendant had made emphatic submissions on behalf of the respondent. The respondent is a proprietor concern belonging to one anjaiah Manufacturing Grills, Doors etc. , and other items he will be taking them along with his labour to places where they have to be fixed and on several occasions he will not be available and further he is not an educated man also. It was further contended that once an application under or. 5 R. 20 C. P. C. was allowed by the Court below, it can be taken that the Court did not accept the affixture and the affixture was treated to be no service at all. It was also further contended that even the money order was sent by the respondent- defendant from his residence only and the revision petitioner though knows about residential address, intentionally had omitted to mention the residential address for the purpose of evading service by hook or crook. The learned Counsel had pointed out that under Or. 7 R. I C. P. C. the plaint shall contain the residential address of the party and since the plaint does not contain residential address it should be taken that summons had not been taken to proper address at all. Since there is no proof against affixture the Court had ordered substituted service, the affixture aspect cannot be taken advantage of by the revision petitioner. The learned Counsel further continuing his elaborate submissions had stated that there is no provision in law that every citizen should read a newspaper and it was specifically stated in the affidavit that the respondent does not read Eenadu newspaper. Further, the burden of proving these aspects is on the revision petitioner and since negative aspect cannot be proved the respondent-defendant cannot be called upon to prove this aspect. Further, the portions of the counter-affidavit were read and the learned Counsel pointed that there is no specific averment relating to the knowledge of the respondent and deliberately avoiding summons and hence it can be taken as an admitted fact, which need not be proved. Further, the portions of the counter-affidavit were read and the learned Counsel pointed that there is no specific averment relating to the knowledge of the respondent and deliberately avoiding summons and hence it can be taken as an admitted fact, which need not be proved. It was also contended that affixture at the place of work is no affixture and further the bailiff was not examined to prove the affixture. The learned Counsel also had relied upon decision reported in Srivastava v. Raizada wherein the Apex Court was pleased to observe as follows:"under Or. 9 R. 13 C. P. C. an ex parte decree passed against a defendant can be set aside upon satisfaction of the court that either summons were not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non-appearance of the defendant in the case on the date of hearing the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Or. 9 R. 13 C. P. C. has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the facts and circumstances of each case. The sufficient cause for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceeding initiated against him he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised,in his favour provided absence was not mala fide or intentional. For the absence of a party in the case, the other side can be compensated by adequate costs and the lis decided on merits. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised,in his favour provided absence was not mala fide or intentional. For the absence of a party in the case, the other side can be compensated by adequate costs and the lis decided on merits. Thus Sri Raghavan had emphatically contended that liberal approach had to be adopted and the normal rule is that a matter should be decided on merits and not by way of an ex parte decree or by way of a default order. ( 9 ) THE learned Counsel for the revision petitioner while making submissions in reply had drawn my attention to several of the events commencing from 29-3-1996 the issuance of notice till the present impugned order is passed and had submitted that all these series of events clearly go to show that the respondent is having knowledge of the proceedings and deliberately he had avoided service, and now he wants to take advantage of the situation by contending that the application is within limitation from the date of the knowledge. The very fact that an application is filed to condone the delay also shows that the respondent is not definite of his stand. ( 10 ) AFTER hearing both the parties at length, and after perusing the affidavit, counter-affidavit and reply affidavit and also the order passed by the Court below, the Court below appears to have allowed the application mainly relying on Or. 5 R. 20 c. P. C. and Art. l23 of the Limitation Act, 1963. Or. 5 R. 20 C. P. C. reads as follows:20. "substituted service:- (1) Whether the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house (if any ) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) Effect of substituted service.- service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. (3vwhere service substituted, time for appearance to be fixed.- Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. "by reading Or. 5 R. 20 sub-rule (1) C. P. C. it is clear that the- Court shall order suit summons to be served by affixing a copy thereof in some conspicuous place in the court house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the Court thinks fit. Art. 123 of the Limitation Act reads. as follows: Description of suits Period of Limitation Time from which period begins to run. 123. To set aside a decree passed ex parte or to rehear an appeal decree heard ex parte Explanation : for the purpose of this Article substituted service under R. 20 of Or. 5 C. P. C. shall not be deemed to be due service. Thirty days. The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. from the Explanation it is clear that for the purpose of this Article substituted service under Rule 20 of Order 5 C. P. C. shall not be deemed to be due service. In Ramalingam s case (supra) the Division Bench of the Madras High Court observed as follows;"it is true that Or. 5 R. 20 (2) of the Code of Civil Procedure states that service substituted by order of Court shall be as effective as if it had been made on the defendant personally. This is | however now subject to the present explanation to Art. 123 of the limitation Act, where an application to set aside an ex parte decree is made substituted service under Or. This is | however now subject to the present explanation to Art. 123 of the limitation Act, where an application to set aside an ex parte decree is made substituted service under Or. 5 R. 20 of the Code shall not be deemed to be due service. At the same time it cannot be said that merely because substituted service was resorted to and effected knowledge on the part of the defendant must always stand ruled out. Even from service by substituted mad knowledge is inferable if the facts and circumstances warrant it. "in fact, the Division Bench, whil deciding the matter had clearly stated dealing with the aspect of service effected by substituted service that at the same time it cannot be said that merely because substituted service was resorted to and effected knowledge on the part of the defendant must always stand ruled out and even from service by substituted mode knowledge is inferable if the facts and circumstances warrant it. In this context only the service by affixture on various dates becomes relevant. It is also pertinent to note that Or. 5 R. 20 C. P. C. also includes the place where the defendant carried on business or personally works for gain. Even in the. agreement between the parties, it appears that the suit schedule premises alone had been specified and hence even in the case of substituted service where there are Other facts and circumstances by virtue of which knowledge can be imputed to the respondent-defendant it is always safe and desirable to have necessary oral and documentary evidence to establish his case for the purpose of deciding the matter. In bengal Coal Company v. Raul Chandra it was no doubt observed that the onus to prove that the application is within thirty days from the date of the knowledge of the decree is on the defendant. Even in the changed situation, in the light of ratio laid down in Ramalingam s case (supra) it is always desirable that prudence should dawn on the respondent defendant to let in proper evidence to explain the facts and circumstances established in a case of this nature. ( 11 ) APART from it, mere filing an affidavit ia no evidence. Even in the changed situation, in the light of ratio laid down in Ramalingam s case (supra) it is always desirable that prudence should dawn on the respondent defendant to let in proper evidence to explain the facts and circumstances established in a case of this nature. ( 11 ) APART from it, mere filing an affidavit ia no evidence. In Sudadevi v. Narayana the apex Court held that affidavits are not included in the definition of evidence in section 3 of the Evidence Act and can be used as evidence only if for sufficient reason the Court passes an order under or. 19 Rules 1 and 2 C. P. C, Further, the service by affixture and substituted service are all act one by theofficers of the Court and there is a presumption that the official acts are done properly. It is no doubt true that in such cases it is always desirable to examine the Process Server or the Bailiff so that there, can be opportunity for the purpose of cross-examination. ( 12 ) THE second Proviso to Order 9 rule 13 C. P. C. reads as follows:"provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear arid. answer the plaintiff s claim. The emphasis canbe laid on the words "if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim ;here itself it may be pointed out that certain provisions like Or. 38 R;5. C. P. C; Or. 39 R. 1 c. P. C. etc. , specify the words "by affidavit or otherwise" whereas under Or. 9 R. 13 c. P. C. the following words are notable: "that ;he was prevented by any sufficient cause from. appearing when the suit was called on for hearing. " Hence the explanation relating to the existence or non- existence of sufficient cause is an essential condition for exercising power under Or. 9 R. 13 c. P. C. the following words are notable: "that ;he was prevented by any sufficient cause from. appearing when the suit was called on for hearing. " Hence the explanation relating to the existence or non- existence of sufficient cause is an essential condition for exercising power under Or. 9 r. 13 C. P. C. The mere fact that the respondent-defendant is having a separate residential address and that no attempt was made to take summons to the said address in the facts and circumstances of the case appear to be of no consequence. It is no doubt true that in the plaint under Or. 7 R. 1 c. P. C. residential address had to be given but for the purpose of Or. 5 R. 20 C. P. C. even the places where the defendant carries on. business or personally works for gain also are included. The series of events and the conduct of the parties if taken into consideration and also in the light of the legal position discussed supra, the parties should have been diligent in letting in proper evidence instead of relying on a technical ground. Unfortunately much water had flown in between and it is represented that possession had been taken and the respondent is trying to have restitution of the property. In the facts and circumstances of the case, since the impugned order was made without appreciating all the relevant facts and circumstances and without any legally acceptable evidence on record except the affidavit, counter-affidavit and reply affidavit. I deem it fit to make the following order: the impugned order in I. A. No. 1087 of 1998 in O. S. No. 844 of 1996 on the file of the first Junior Civil Judge, City Civil Court. Secunderabad dated 29-10-1998 is hereby set aside and the matter is remitted back to the Court below for the purpose of fresh disposal in accordance with law. The parties shall be given liberty to adduce necessary evidence in support of their contentions and it is further directed that in view of the urgency of the matter, the whole exercise shall be completed by the Court below within a period of three months from the date of receipt of a copy of this order. Meanwhile status quo, existing as on to-day, shall be maintained by both the parties. Meanwhile status quo, existing as on to-day, shall be maintained by both the parties. ( 13 ) CIVIL Revision Petition is accordingly allowed to the extent indicated above. No costs.