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2010 DIGILAW 579 (MAD)

Neelamegam & Others v. Arputham

2010-02-16

R.S.RAMANATHAN

body2010
Judgment : 1. The defendants 1 to 3 in O.S.No.114 of 2006, on the file of the Principal District Judge, Thanjavur, are the revision petitioners herein. 2. The respondent herein filed P.O.P.No.41 of 2004 to declare himself as indigent person and in that proceedings, the revision petitioners entered appearance through counsel and after contest, P.O.P.No.41 of 2004 was allowed and the same was ordered to be numbered as suit and the case was posted to 20.11.2006. On that date, the revision petitioners did not appear and the case was adjourned to various dates for the appearance of the revision petitioners and finally, ex-parte decree was passed on 31.08.2007. The respondent filed E.P. to execute the decree and at that stage, the revision petitioners came to know that the decree was passed against them in O.S.No.114 of 2006 on 31.08.2007 and therefore, they filed application to set aside the ex-parte decree passed against them and as there was a delay of 309 in filing the application, they filed section 5 application to condone the delay in setting aside the ex-parte decree and that application was dismissed by the lower Court. Aggrieved by the same, this civil revision petition is filed by the revision petitioners. 3. It is submitted by Mr.G.Karnan, the learned counsel appearing for the revision petitioners that admittedly, after numbering the suit, no summons were served on the revision petitioners and therefore, they were not aware of the date of the proceedings and without serving the summons, the Court should not have passed the ex-parte decree and hence, the lower Court has erred in dismissing the application to condone the delay. 4. On the other hand, the learned counsel appearing for the respondent, Mr.A.Subramanian, submitted that the Advocate, who appeared for the revision petitioners before the lower Court in P.O.P.No.412 of 2004 appeared for the revision petitioners in the E.P. Proceedings and also filed application to condone the delay and as per Order 5 Rule 1 & 12 C.P.C, the same Advocate continues to represent the party and therefore, it cannot be stated that no summons were served on the revision petitioners. According to him, as per Order 5 Rule 12 C.P.C, when the defendant is represented by an agent empowered to accept service, serving on such agent is sufficient and as per Order 5 Rule 1, when a suit has been duly instituted, summons may be issued to the defendant to appear and in this case, already summons were issued to the revision petitioners to appear in the O.P. and therefore, it cannot be contended that no summons were issued on the revision petitioners. 5. Heard the counsel appearing on both sides. 6. It is seen from the order of the lower Court that summons were not served on the revision petitioners after the suit was numbered and as a matter of fact, no summons were issued to the revision petitioners for entering appearance in the suit. As contended by the learned counsel appearing for the revision petitioners that as per Order 33 Rule 8, when an application to permit a person to file a suit as indigent person is allowed, the suit shall be numbered and registered and shall be deemed to be the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner. Therefore, when indigent O.P is allowed and the plaintiff is permitted to file the suit as indigent person, the Court has to issue fresh summons to the defendants intimating the date of appearance. Further, one cannot expect the defendant to note the date of adjournment, when the suit is numbered and only for that purpose, summons have to be issued to the defendants intimating the date of adjournment. Admittedly, in this case, no summons were issued to the defendants. The arguments of the respondents that the same Advocate appeared for the revision petitioners in the later stage of the proceedings cannot be accepted, as after the numbering of the suit, a duty is cast upon the Court to issue fresh summons and if any notice is served on the Advocate, who appeared for the defendants in the O.P. that can be taken to be a service on the defendants as per Order 5 Rule 12. 7. 7. In this case, it is not stated that the notice was served on the counsel, who appeared for the revision petitioners in the O.P. after the suit was numbered Hence, the lower Court has committed an error in dismissing the application. According to me, in the absence of proving of service of summons on the revision petitioners, the lower Court should not have set them as ex-parte. Hence, the order of the lower Court is set aside and the lower Court is directed to dispose of the application to set aside the ex-parte decree within a period of four weeks from the date of receipt of copy of this order. Accordingly, this civil revision petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.