JUDGMENT 1. This civil revision petition is filed against the order made in I.A.No.21070 of 2008 in O.S.No.3798 of 2007 on the file of the XIII Assistant Judge, City Civil Court, Chennai wherein and whereby the application filed by the petitioner herein under section 5 of the Limitation Act seeking to condone the delay of 350 days in filing the set aside petition came to be rejected. 2. The petitioner before this Court is the defendant in the above said suit filed by the respondent herein for recovery of a sum of Rs.90,485/- based on some loan transaction. The said suit came to be dismissed as exparte decree and thereafter, the respondent filed E.P.No.2039 of 2008 and after receiving the notice in the E.P., the petitioner herein filed the present application in I.A.No.21070 of 2008 under section 5 of the Limitation Act as stated supra. 3. It is the contention of the petitioner that the suit summon was not properly served on him and therefore, he was not in a position to defend his case before the trial court. It is the further contention of the petitioner that only upon receiving the notice in the E.P., he came to know about the exparte decree passed against him. 4. Per contra, the learned counsel appearing for the respondent submits that immediately after obtaining the decree, the petitioner issued with a letter by the respondent themselves and having received the same, the petitioner cannot claim that he has no knowledge about the decree. 5. Heard the learned counsel appearing on either side and perused the order passed by the court below. 6. The petitioner as the defendant filed the application under Section 5 of the Limitation Act application to set aside the exparte decree passed on 21.11.2007. It is his case that the said summon was not properly served upon him. Though the petitioner has stated that there was no proper service, the court below instead of giving a finding that the notice was served upon the petitioner properly, has only observed that the petitioner has not taken steps to prove that summons were not served properly. Such finding in effect is expecting the petitioner to prove the negative, which in my considered view is not correct. 7. Such finding in effect is expecting the petitioner to prove the negative, which in my considered view is not correct. 7. In the absence of any finding by the court below that the suit summons were properly served on the petitioner and in view of the fact the delay is 350 days, I deem it, in the interest of justice that the petitioner should be given an opportunity to contest the matter on merits. However, as the delay is 350 days, I consider that the application filed by the petitioner under section 5 of the Limitation Act could be allowed only on certain terms. Accordingly, the civil revision petition is allowed and the order passed by the court below is set aside and consequently, I.A.No.21070 of 2008 in O.S.No.3798 of 2007 is allowed subject to condition that the petitioner herein pays a sum of Rs.2,500/-as cost to the respondent through their counsel who appears in this civil revision petition within a period of one week from the date of receipt of a copy of this order. Since the application under section 5 of the Limitation Act is allowed by this court, the trial court is directed to take up the suit in O.S.No.3798 of 2007 and dispose of the same on merits and in accordance with law after giving due opportunities to both sides within a period of two months from the date of receipt of copy of this order. No costs.