Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 3127 (MAD)

Militarykaran Ashokan @ Ashokan v. Venkatramani

2010-07-28

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 10.07.2009 passed in I.A.No.40 of 2009 in O.S.No.5 of 2005 by the learned Principal Subordinate Judge, Krishnagiri, this civil revision petition is focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent/plaintiff filed the suit claiming damages as against as many as six defendants including the revision petitioner/D2 herein. The revision petitioner/D2 remained absent, whereupon ex parte decree was passed. Subsequently, it appears D2 filed the application under Section 5 of the Limitation Act to get the delay of 760 days condoned in filing the application to get the ex parte decree set aside. After hearing both sides, the lower Court dismissed the application. Being aggrieved by and dissatisfied with the same, this revision has been filed on various grounds. 4. The learned counsel for the revision petitioner/D2 placing reliance on the grounds of revision, would develop his argument that the suit summons was not served in person on D2 and the alleged paper publication did not come to the notice of D2 and as such, there was a delay in filing the application to get the ex parte decree set aside. Whereas, the learned counsel for the respondent/ plaintiff would submit that since the petitioner/D2 evaded service, that necessitated publication of notice and it would not lie in the mouth of the revision petitioner to contend that paper publication was not brought to his notice and it was his duty to take note of it. No doubt, substituted service could be valid service, but once the revision petitioner comes to Court with an affidavit that he had not taken note of it and that too at the time of the alleged attempt to get the suit summons he was not at all in that address and that already he changed his address, it is the duty of the plaintiff to ensure the correct address and take suit summons, but that was not done so in this case. Be that as it may, it is now clear that after receipt of E.P. notice, the revision petitioner/defendant took steps to file the application concerned. The lower Court without adverting to all the relevant facts involved in this case, simply dismissed the application warranting interference by this Court in the revision. Be that as it may, it is now clear that after receipt of E.P. notice, the revision petitioner/defendant took steps to file the application concerned. The lower Court without adverting to all the relevant facts involved in this case, simply dismissed the application warranting interference by this Court in the revision. It is also clear from the submissions made by the learned counsel for the respondent/plaintiff that there was delay on the part of the revision petitioner/D2 in filing the application under Section 5 of the Limitation Act despite receipt of E.P. notice. Hence the plaintiff has to be compensated adequately. 5. In the result, the order of the lower Court is set aside and the application under Section 5 of the Limitation Act is allowed subject to the condition that the revision petitioner herein shall pay a sum of Rs.5,000/-(Rupees five thousand only) on or before 10th August 2010 to the respondent/plaintiff and if there is default in payment, this order will not enure to the benefit of the revision petitioner. On compliance with the order of this Court, the I.A. under Order 9 Rule 13 shall be numbered and disposed of within a period of one week. In the event of allowing the said I.A., the suit itself shall be disposed of within a period of three months thereafter. Accordingly, this civil revision petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.