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2008 DIGILAW 2583 (MAD)

R. Poongavanam v. C. Dhandapani

2008-07-22

S.TAMILVANAN

body2008
Judgment :- 1. This Civil Revision Petition has been preferred against the order, dated 010. 2006 made in I.A.No.1342 of 2004 in O.S.No.65 of 1999 on the file of the District Munsif Court, Gobichettipalayam. 2. The aforesaid Interlocutory Application had been filed by the respondent / defendant before the court below, under Section 5 of the Limitation Act to condone the delay of 551 days in filing a petition under Order 9 Rule 13 CPC to set aside the exparte decree. 3. The court below considering the reasons assigned by respondent / defendant was pleased to allow the petition. Aggrieved by which, the revision petitioner / plaintiff has preferred this Civil Revision Petition. .4. According to Mr. K. Ramachandran, learned counsel appearing for the revision petitioner, the court below has not assigned any acceptable reason for allowing the petition filed by the defendant under Order 9 Rule 13 CPC. 5. Per contra, Mr. N. Manokaran, learned counsel appearing for the respondent / defendant contended that notice was ordered to the respondent / defendant, only by substituted service, since notice was not served on him. Though he was permanently residing at Tiruppur, the substituted service by publication was effected only in the Erode edition of Dinamalar, Tamil Daily and not in Tiruppur edition of the Newspaper. As per Order 5 Rule 20 (1A) CPC, where the court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be published in a daily newspaper having circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally known. 6. In the instant case, it is not in dispute that the respondent / defendant was residing only at Tiruppur and not at Erode, however, paper publication has been made only in Erode edition of the Newspaper. In such circumstances, I could find no error in the impugned order, allowing the petition filed under Section 5 of the Limitation Act to condone the delay. Learned counsel appearing for the revision petitioner / plaintiff has contended that the suit relates to the year 1999 and therefore, this court may direct the court below to dispose the suit, according to law on merits, within a time frame fixed by this court. Learned counsel appearing for the revision petitioner / plaintiff has contended that the suit relates to the year 1999 and therefore, this court may direct the court below to dispose the suit, according to law on merits, within a time frame fixed by this court. The representation made by the learned counsel for the petitioner is quite reasonable, since the suit relates to the year 1999. 7. Considering the facts and circumstances of this case, I am of the view that there is no error on the part of the court below in allowing the petition filed under Section 5 of the Limitation Act to condone the delay in filing petition under Order 9 Rule 13 of the Code of Civil Procedure and considering the representation made by the learned counsel for the revision petitioner / plaintiff, to meet the ends of justice, I find it reasonable to direct the court below to dispose the suit according to law, within the time frame fixed by this court. .8. According to the learned counsel for both sides, as there was a stay granted by this court, the petition filed under Order 9 Rule 13 CPC is yet to be numbered and disposed of, however, the respondent / defendant has filed his written statement in the suit. In such circumstances, the court below is directed to allow the petition filed under Order 9 Rule 13 CPC and dispose the suit according to law on merits, within a period of four months from the date of receipt of the copy of this order. 9. With the above direction, this Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.