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2010 DIGILAW 4754 (MAD)

D. S. Mani v. Maneendher Singh

2010-10-28

V.PERIYA KARUPPIAH

body2010
Judgment :- 1. This revision has been filed against the order passed in I.A.No.333 of 2009 in O.S. No.495 of 1996 passed by the lower court to condone the delay of 3284 days in filing the application to set aside the ex-parte decree. 2. Heard Mr.K. Ramakrishnan, learned counsel for the petitioner and Mr.T. Thiyagarajan, learned counsel for the respondent. 3. Learned counsel for the petitioner would submit in his argument that the court has not exercised its jurisdiction in condoning the delay caused there in and the reasons stated by the petitioner was to the effect that the petitioner was not aware of the passing of ex-parte decree. He would further submit in his argument that the petitioner was not served with any summons in O.S.No.495 of 1996 and he has received notice only in E.P.No.42 of 2007 in O.S.No.495 of 1996. Thereafter, only he came to know about the ex-parte decree immediately and in the meanwhile a delay of 3284 days has been caused in filing the application. Since there is no service of summons in the suit the application filed by the petitioner to set aside the ex-parte decree ought to have been numbered after a delay of 3284 days has been condoned. 4. Learned counsel for the respondent would submit in his argument that the reason for delay is not appreciable and it is deliberate and it is not true that the petitioner had knowledge of the decree only after the receipt of the notice in E.P.No.42 of 2007. He would also submit in his argument that the summons was issued to the petitioner through court and it was received by the petitioner/defendant on 21.02.1997 through RPAD and he also engaged the counsel Mr.N. Muthu and Mr.S. Rajendran who had filed vakalat on their behalf and after entering appearance the counsel was praying time for written statement. But he did not file any written statement and therefore he was set ex-parte on 24.04.1998 and an ex-parte decree was passed against him on 08.09.1998. He would further submit that the reason given by the petitioner are not true and therefore it has to be dismissed. 5. But he did not file any written statement and therefore he was set ex-parte on 24.04.1998 and an ex-parte decree was passed against him on 08.09.1998. He would further submit that the reason given by the petitioner are not true and therefore it has to be dismissed. 5. In order to verify as to the service of summons as contended by the respondent, this court had called for the report from the learned Principal District Judge, Kancheepuram District at Chengalpattu and in turn it was directed against the Sub-ordinate Judge, Tambaram. The learned Sub-ordinate Judge, Tambaram has submitted his report in respect of the filing of the suit, its pendency, service of summons, notice and disposal of the application in I.A.No.333 of 2009. 6. I have given anxious thoughts to the arguments advanced on either side. I have also carefully perused the papers and the report. 7. According to the submission of the learned counsel for the petitioner the delay in filing the application to set aside the ex-parte decree should have been considered liberally as per the latest judgments of Honble Apex court. He had placed arguments on the basis of the affidavit submitted by the petitioner before the lower court that there was no summons served on the petitioner. However, the said allegation that there was no service of summons has been denied by the respondent in the counter affidavit filed before the lower court. 8. The report of the Sub-ordinate Judge, Tambaram, would go to show that the plaintiff namely Mr. Maneendhar Singh, represented by his Power of Attorney Mr. Sundar Paul Singh filed a suit in O.S.No.495 of 1996 on the file of Sub-ordinate Court, Poonamallee against the defendant Mani (the petitioner herein) for the relief of specific performance and the said suit was taken on file on 16.12.1996 and summons were issued for the hearing on 24.01.1997 and on 24.01.1997, the case was adjourned since court summons were not yet returned as await Court summon and a fresh summons to the defendant was ordered returnable by 25.04.1997. It would further disclose that on 25.04.1997, the summons sent by registered post was acknowledged by the said Mani and thereafter advocates Mr.N. Muthu and Mr.S. Rajendran filed vakalat for the said defendant Mani (the petitioner herein) and the case was adjourned to 22.08.1997. It would further disclose that on 25.04.1997, the summons sent by registered post was acknowledged by the said Mani and thereafter advocates Mr.N. Muthu and Mr.S. Rajendran filed vakalat for the said defendant Mani (the petitioner herein) and the case was adjourned to 22.08.1997. Thereafter, on 24.04.1998, the defendant was called absent and set ex-parte as written statement was not filed and the case was adjourned to 29.04.1998 for recording ex-parte evidence. It further reads that on 11.06.1998 ex-parte evidence was recorded and the case was adjourned for passing further orders and the plaintiff was given time for paying the balance sale consideration and on 08.09.1998 ex-parte decree was passed directing the plaintiff to deposit the balance sale consideration within 15 days. 9. In the wake of the said report, we could see that the summons were issued by the Sub-ordinate Judge, Poonamallee in the said suit in O.S.No.495 of 1996 to the petitioner/defendant and it was served against him for the hearing 25.04.1997 and he also engaged counsel for defending the said case. Therefore, it is clear that the submission of the petitioner before the lower court that summons were not served against him and therefore, he could not know about the ex-parte decree passed on 08.09.1998 could not be true. Therefore, the allegation that he had the knowledge of the ex-parte decree only after receiving the EP notice is also found to be untrue. 10. In the aforesaid circumstances, this court could see the delay caused from the date of service of summons till the date of receipt of the notice in the EP was explained by the petitioner. It is a settled law that once the petitioner/defendant is found to have served with summons, he has to explain the delay caused from the date of service of summons till the date of filing of the petition to set aside the ex-parte decree. If really any summons have not been served against petitioner then the date of knowledge of passing of the ex-parte decree can be considered for the explanation of the delay. As far as this case is concerned, the summons have been served against the petitioner/defendant on 25.04.1997. Therefore, he has to explain the delay from the said date onwards and it was not promptly explained by the petitioner. As far as this case is concerned, the summons have been served against the petitioner/defendant on 25.04.1997. Therefore, he has to explain the delay from the said date onwards and it was not promptly explained by the petitioner. The reasons submitted before the lower court is that he was not served with summons was found to be incorrect and not true. In the aforesaid circumstances, non exercise of its jurisdiction to condone the delay by the lower court is found to be correct. Therefore, this court also cannot find fault with the order passed by the lower court. Therefore, the order passed by the lower court is not interfereable. Accordingly, the revision petition is dismissed with costs.