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2013 DIGILAW 566 (AP)

N. Hanmanth Reddy v. Razia Begum

2013-07-19

M.S.RAMACHANDRA RAO

body2013
Order: Heard Sri D.Prakash Reddy, Senior Counsel representing Sri Venkata Rao Patil, learned counsel for the petitioner and Sri Ashok Ananda Kumar, learned counsel for the respondents. 2. These Revisions are filed under Article 227 of the Constitution of India challenging the separate orders dt.13-03-2013 in I.A.No.151 of 2008 (new) (old I.A.No.102 of 2006) in O.S.No.36 of 2001 on the file of Senior Civil Judge, Zaheerabad, and in I.A.No.67 of 2013 in the same suit. 3. The petitioner in the Civil Revision petitions is the plaintiff in the above suit. He filed the said suit on the file of Senior Civil Judge, Sangareddy against respondents 1 to 8 for specific performance of an agreement of sale dt.09-12-1997 executed by them in his favour in respect of land in Sy.No.127 AA of Zaheerabad. Summons were sent for service on respondents/defendants by the Court through the process server of the Court. It appears that when the process server sought to serve the summons on the respondents at the address 8-4-380/1/29/A, Premnagar, Erragadda, Hyderabad (for short, the ‘Erragadda address’), the ladies in the household refused to take the summons or to affix the same on the door of the premises. On the report filed by the process server in the Court to that effect, a docket order dt.23-08-2001 was passed setting the respondents ex parte. Trial was conducted and a decree was passed ex parte on 08-11-2001. 4. Subsequently E.P.No.104 of 2005 was filed before the Senior Civil Judge, Sangareddy, by the petitioner for execution of the decree. A paper publication was also made in an Urdu paper “Saz-E-Deccan” on 20-12-2005 fixing the date of appearance of the respondents as 30-12-2005. 5. I.A.No.102 of 2006 was filed by respondents in February, 2006 before the Senior Civil Judge, Sangareddy, under Section 5 of the Limitation Act, 1963 to condone the delay of 1521 days in filing an application under Order IX Rule 13 C.P.C. to set aside the ex parte decree dt.08-11-2001 in O.S.No.36 of 2001. Another application under Order IX Rule 13 of C.P.C. was also filed to set aside the said ex parte decree. 6. Another application under Order IX Rule 13 of C.P.C. was also filed to set aside the said ex parte decree. 6. In the affidavit filed in support of the above applications, the respondents submitted that they did not receive the summons in the suit and there was no refusal or affixture of summons on their house; that they were set ex parte on 17-09-2011 and an ex parte decree was passed on 08-11-2001 against them for specific performance of the agreement of sale dt.29-12-1997; that E.P.No.104 of 2005 was filed by petitioner to execute the decree; on 31-01-00 they came to know that the said E.P. was filed; on verification it was discovered that the petitioner had sent summons to their old address; that since 1997 they are residing at House No.14-1-88/2/A, Central Allapur, Tulsinagar Road, Borabanda, Balanagar Mandal, Ranga Reddy District (for short, ‘Borabanda address’) ; and therefore, their non-appearance in the suit on 17-09-2011 is not wilful or deliberate. Therefore they prayed that the delay in filing the application to set aside the ex parte decree in O.S.No.36 of 2001 be condoned in exercise of powers of the Court u/s.5 of the Limitation Act, 1963 and the said ex parte decree be also set aside u/Or.IX Rule 13 CPC. 7. Later E.P.No.104 of 2005 on file of the Senior Civil Judge, Sangareddy was transferred to Court of Senior Civil Judge, Zaheerabad and renumbered as E.P.No.10 of 2008. The I.A.No.102 of 2006 filed by respondents before Senior Civil Judge, Sangareddy, was transferred to Court of Senior Civil Judge, Zaheerabad, and renumbered as I.A.No.151 of 2008 (new). The application under Order IX Rule 13 of C.P.C. filed by respondents to set aside the ex parte decree dt.08-11-2001 in O.S.No.36 of 2001 was also transferred to Court of the Senior Civil Judge, Zaheerabad, and numbered as I.A.No.67 of 2013. 8. Subsequent to transfer to the Court of Senior Civil Judge, Zaheerabad, the respondents filed an additional affidavit in I.A.No.151 of 2008 stating that they are advised to state certain new facts which were not stated in the affidavit filed along with I.A.No.102 of 2006. 8. Subsequent to transfer to the Court of Senior Civil Judge, Zaheerabad, the respondents filed an additional affidavit in I.A.No.151 of 2008 stating that they are advised to state certain new facts which were not stated in the affidavit filed along with I.A.No.102 of 2006. In the additional affidavit, they inter alia contended that respondent No.7 was married in 1990 with Sri Mohammad Ghouse and is residing at Musheerabad with her husband since her marriage; respondent No.8 married Mohammad Ajmeer on 29-04-2005 and was residing with her husband at Sulthan Nagar, Erragadda, Hyderabad since her marriage; that respondent No.6 died on 08-12-2002 unmarried and the other respondents are his legal heirs as per Mohammedan Law; although they own agricultural lands at Zaheerabad they had resided at the Erragadda address for some time and shifted in 1998 to Borabanda address; that they initially entered into an oral agreement of sale with one Srinivasa Reddy and others in 1997 for sale of land in Survey No.127AA of Zaheerabad (the suit schedule property) and received certain amounts on 26-08-1997, December, 1997 and 27-03-1998, but they did not execute sale deed in their favour as there were differences with them about the area which each vendee wanted to be shown separately in the sale deed; so the said transaction was kept in abeyance; subsequently respondents again proposed to sell the land in Survey No.129AA of Zaheerabad to V.Srinivasa Reddy and his friends; that they did not know that petitioner was also one of the friends of V.Srinivasa Reddy; although the transaction was to proceed on 29-10-1997, due to some hurdles to the vendees, it did not go through on that day; the work to prepare the sale deed and get it registered was entrusted to petitioner, who is an advocate; at the time of registration before the Registrar, on his explaining the contents of the sale deed, the respondents came to know that he is also one of the vendees; the petitioner by playing fraud on respondents got prepared a typed agreement of sale dt.24-10-1997 as if respondents agreed to sell him an extent of Ac.4.23 guntas in Sy.No.127AA and intended to take the respondents’ signatures on 24-10-1997 itself when the sale deed in respect of the land in Sy.No.129AA was to be executed; but the latter transaction did not go through; that on 29-12-1997, the latter transaction went through but at that time, the petitioner obtained fraudulently the signatures of the respondents on the suit agreement of sale also by mixing it up with papers of the sale deed in respect of the land in Sy.No.129AA; that the respondents did not receive any consideration in respect of the suit schedule land which is mentioned in the agreement of sale dt.29-12-1997; and that petitioner gave a set of Photostat copies of all pages on which the respondents’ signatures were obtained on 29-12-1997 including the suit agreement of sale and they kept them in their house thinking that these papers relate only to sale of the land in Sy.No.129AA of Zaheerabad. 9. They also contended that in 2006, one of their friends informed the 3rd respondent that a Court notice was published in their name in a Urdu news paper dt.20-12-2005 to appear in Sangareddy Court; the 3rd respondent thought that V.Srinivasa Reddy had filed a case in respect of Sy.No.127AA and as he did not know about the change in the address of the respondents, he might have got published the notice in the news paper; on enquiry, V.Srinivasa Reddy denied the same; the 3rd respondent went to Sangareddy, verified in all Courts and came to know about the filing of E.P.No.104 of 2005 by petitioner and passing of ex parte decree in O.S.No.36 of 2001; that the notice of the respondents’ appearance was published in the Urdu paper “Saz-E-Deccan” on 20-12-2005 fixing the date of appearance as 30-12-2005; in the paper advertisement also, the Erragadda address was furnished to the Court by petitioner with an intention to get the decree executed and this indicates the fraud played by the petitioner; that certain material alterations and forgeries of signatures were committed by the petitioner; no legal notice was issued by petitioner to the respondents before filing of O.S.No.36 of 2001; only the old Erragadda address, which was no doubt mentioned in the agreement of sale dt.29-12-1997, was mentioned in the plaint in O.S.No.36 of 2001; the Senior Civil Judge, Sangareddy’s docket order dt.23-08-2001 (that the summons were returned as the ladies present at the address shown therein refused to take them and to affix them on the door), cannot be the basis to set them ex parte in the suit as such a report is vague; that the Erragadda address where the respondents resided prior to 1998 was gifted orally by them to a Masjid and had since become a Masjid; in any event, there was no attempt to serve notice on respondents 1, 7 and 8; and merely because of the alleged refusal, particularly when Respondent no.-7 and 8 are married and living at a different address with their respective husbands, it cannot be presumed that there was proper service. They also contended that the refusal by some unconcerned ladies at the Erragadda address cannot be taken as a refusal by the lady parties to the suit nor can it be taken as a refusal by the male parties to the suit. They also contended that the refusal by some unconcerned ladies at the Erragadda address cannot be taken as a refusal by the lady parties to the suit nor can it be taken as a refusal by the male parties to the suit. It is thus evident, they contended, that the summons were not properly served on the defendants/respondents. 10. They further contended that the petitioner, who is an advocate, misrepresented to the Court and obtained ex parte decree by playing fraud on the Court on the basis of a forged and materially altered document; that on verification of the record in the suit they came to know that a legal notice dt.10-09-1998 was got issued by petitioner to the respondents but it was returned unserved; that on 08-01-2006 only they got actual knowledge of passing of ex parte decree; and therefore, the delay of 1521 days in filing petition to set aside the ex parte decree in O.S.No.36 of 2001 is liable to be condoned and the said decree set aside. 11. A counter affidavit was filed by petitioner refuting the above allegations. 11. A counter affidavit was filed by petitioner refuting the above allegations. He stated that the plea of the respondents that they have shifted the residence from Erragadda to Borabanda in 1998 is false; that they had filed O.P.No.113 of 2003 before the Motor Accidents Claim Tribunal-cum-III A.C.J., City Civil Court, Hyderabad, claiming compensation against M/s.E.P.O.C. Mini Bus Society and the New India Insurance Company Limited by showing their Erragadda address; that there is no fraud in the execution of the agreement of sale dt.29-12-1997 in respect of the land in Sy.No.127AA of Zaheerabad; that he had no connection with the preparation, execution or registration of the sale deed in respect of the land in Sy.No.129AA; that respondents were fully aware of the filing of O.S.No.36 of 2001, the decree passed therein, the filing of the E.P.No.104 of 2005 at Sangareddy and its transfer to Zaheerabad and renumbering as E.P.No.10 of 2008; the notices of E.P.No.104 of 2005 were sent to the Erragadda address given in the agreement of sale dt.29-12-1997; that the address mentioned in the agreement of sale dt.29-12-1997 was the agreement shown in the suit O.S.No.36 of 2001; that the Senior Civil Judge, Sangareddy, satisfied himself about the report of the Process Server about refusal of summons by the defendants in O.S.No.36 of 2001 and then only set them ex parte; that he is not aware of the death of respondent No.6 or of marriages of respondents 7 and 8 or their change in address or the alleged gifting of the Erragadda premises by respondents to the Masjid; that he had nothing to do with O.P.No.113 of 2003 filed by respondents claiming compensation as mentioned above and one K.Harimohan Reddy, Advocate, conducted it; that he did not entrust it to the said counsel; that the contents of the affidavit and additional affidavit filed in I.A.No.151 of 2008 are concocted and fabricated and cannot be believed; there is no sufficient cause for condonation of the extraordinarily long period of 1521 days in filing the application to set aside the ex parte decree in O.S.No.36 of 2001; and therefore, both applications ought to be rejected. 12. In the Court below, the respondents examined P.Ws.1 to 4 and marked Exs.P-1 to P-4. The petitioner examined himself as R.W.1 and marked Exs.R-1 to R-4. 13. By separate orders dt.13-03-2013, the Court below allowed I.A.No.151 of 2008 and also I.A.No.67 of 2013. 12. In the Court below, the respondents examined P.Ws.1 to 4 and marked Exs.P-1 to P-4. The petitioner examined himself as R.W.1 and marked Exs.R-1 to R-4. 13. By separate orders dt.13-03-2013, the Court below allowed I.A.No.151 of 2008 and also I.A.No.67 of 2013. Detailed order was passed in I.A.No.151 of 2008. 14. 12. In the Court below, the respondents examined P.Ws.1 to 4 and marked Exs.P-1 to P-4. The petitioner examined himself as R.W.1 and marked Exs.R-1 to R-4. 13. By separate orders dt.13-03-2013, the Court below allowed I.A.No.151 of 2008 and also I.A.No.67 of 2013. Detailed order was passed in I.A.No.151 of 2008. 14. The court below held that the respondents were able to establish that they had changed their address from Erragadda to Borabanda in 1998; this is corroborated by evidence of P.Ws.1 to 4 and endorsement on Ex.A-3 legal notice which is marked in the suit (that the addressees were absent for seven days continuously and hence returned); the petitioner did not file any document which is acceptable proof of address of respondents to show that they were residing only at Erragadda address after 1998; Exs.R-1 to R-4 (i.e., the claim petition in O.P.No.113 of 2003, vakalath of R.W.1, petition affidavit in I.A., in O.P.No.113 of 2003) cannot be considered as admissible proof of address of respondents; admissible proof of address should be a postal certificate, ration card, election card, residence certificate or municipal house property particulars or similar documents; that Exs.R-1 to R-4 were taken by counsel on record and not by petitioner; the petitioner ought to have obtained Exs.R-1 to R-4 certified copies only through a third party application procedure and he cannot utilise the same as they were obtained through the counsel on record in the O.P.; although there is an office endorsement of 23-08-2001 in O.S.No.36 of 2001 stating that summons to D-1 to D-8 therein were returned as ladies present refused to take summons or to affix the same on the door, the record of the Process Server relating to the service of summons on the respondents is not available as the same was destroyed with the permission of the District Judge in course of time and is now not available for verification; from the docket order dt.23-08-2001, it cannot be taken as a refusal by the male members or by their two sisters, who were married and living with their respective husbands; that there is no mention of anything in respect of each of the defendants’ response to the summons and whether an attempt was made to serve on each of the defendants as R.P.A.D. process report was not available; this indicates that things were not done properly and the matter was hushed up; there cannot be a refusal by the ladies of the premises for affixture and its meaning is unclear; that the petitioner, being a practicing advocate, ought to have followed proper procedure and taken a contested decree rather than taking a decree behind the back of respondents, particularly when there are serious allegations of fraud and alteration of documents; there is no negligence and latches on the part of respondents in filing the application to set aside the ex parte decree; and there are sufficient grounds to condone the delay in filing the said application and for setting aside the ex parte decree. 15. Aggrieved thereby the petitioner has filed C.R.P.No.s1927 of 2013 and 1926 of 2013 in this Court. 16. The learned counsel for the petitioner submitted that the orders passed by the Court below are unsustainable; the reasoning of the Court below is perverse; when the respondents in 2003 filed O.P.No.113 of 2003 before the Motor Accidents Claims Tribunal, III Additional Chief Judge, City Civil Court, Hyderabad, giving their Erragadda address only, and this is established by Exs.R-1 to R-4, the Court below could not have held on the basis of oral evidence of P.Ws.1 to 4 that the respondents were staying at Borabanda since 1998; that the Court below wrongly placed on the petitioner, the burden of proving that respondents were not staying at Erragadda address at the time of filing of the suit O.S.No.36 of 2001; in the absence of the respondents’ filing postal certificate, ration card, election card, residency certificate or municipal house property records or electricity bills/receipts about their stay at Borabanda since 1998, it should have rejected their plea that they were not residing at Yarragadda in 2001; Ex.A-3 cannot be relied upon in these applications to hold in favour of respondents; in the absence of the record of the Process Server relating to service of summons on respondents 1 to 8 in O.S.No.36 of 2001 on accounts of its destruction, no presumption as to any irregularity in the service of summons can be presumed or implied; on the contrary it has to be presumed that Court was satisfied that proper procedure was followed and that only on such satisfaction, it had set the respondents ex parte. He therefore contended that the impugned orders deserve to be set aside. 17. Per contra, the learned counsel for respondents submitted that the Court below has rightly considered the evidence on record and condoned the delay in filing the application to set aside the ex parte decree and has set aside the said ex parte decree; that in N.Balakrishnan Vs. He therefore contended that the impugned orders deserve to be set aside. 17. Per contra, the learned counsel for respondents submitted that the Court below has rightly considered the evidence on record and condoned the delay in filing the application to set aside the ex parte decree and has set aside the said ex parte decree; that in N.Balakrishnan Vs. M.Krishna Murthy ( 1998 (7) S.C.C. 123 ), the Supreme Court has held that if the trial Court accepted explanation for condonation of delay as sufficient and had exercised its discretion to condone the same, it is not open for the High Court in exercise of its Revisional jurisdiction to disturb its decision; that the oral and documentary evidence on record established that the respondents were not residing at Erragadda address after 1998; that the endorsement of the Process Server about service of summons on the basis of which the respondents were set ex parte and ex parte decree was passed, indicates that the provisions of Order V of C.P.C. and in particular Rule 17 thereof were not followed; alternatively it is also contended that, assuming that there was proper service of summons, under Order IX Rule 6 (c) of C.P.C., it has to be presumed that there was no sufficient time for the respondents to appear in the Court on the day fixed in the summons; and so Court below should have postponed the hearing to a future date to be fixed by it, instead of setting the respondents ex parte in the suit. He relied upon SushilKumar Sabharwal Vs., Gurpreet Singh and others (AIR 2002 Supreme Court 2370)and NaharEnterprisesVs., Hyderabad Allwyn Ltd., and Anr ( 2007(9) S.C.C. 466 ). 18. I have noted the submissions of the respective parties. 19. In N. Balakrishnan (1 supra), the Supreme Court laid down guidelines as to how the power to condone delay in exercise of the power of the Court under Section 5 of the Limitation Act, 1963 is to be exercised. It held : “9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. It held : “9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. KuntalKumari, and State of West Bengal v. Administrator, Howrah Municipality. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.” 20. Keeping the above decision in mind, the correctness of the order passed by the Court below is to be considered. 21. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.” 20. Keeping the above decision in mind, the correctness of the order passed by the Court below is to be considered. 21. The first issue to be decided is whether the respondents were able to establish that they had changed their address from Erragadda to Borabanda in 1998. The respondents have not denied that they had filed O.P.No.113 of 2003 before the Motor Accidents Claims Tribunal-cum-III A.C.J., City Civil Courts, Hyderabad and this is also proved by Exs.R-1 to R-4. It is not in dispute that in the Claim Petition filed therein, they have shown the Erragadda address only. This prima facie indicates that in 2003 also, after filing of O.S.No.36 of 2001 and its decree on 08-11-2001, they continued to reside at Erragadda address. To disprove that fact, they did not file any postal certificate, ration card, election card, residency certificate or Municipal house property particulars or even electricity bill to show that they were residing at Borabanda address since 1998. When such documentary evidence would be available to prove the respondents’ contention, their inaction in filing them should have caused the Court below to draw an adverse inference against them. Instead, it perversely held that the petitioner should have produced one or the other of the above documents to establish that the respondents were residing at Erragadda address. In my opinion, the Court below wrongly placed on the petitioner the burden of proving that the respondents had not shifted from Erragadda in 1998. It should have placed the burden on the respondents to prove that they had in fact shifted to Borabanda in 1998. When such a fact could be established by documentary evidence and such evidence was not forthcoming from the respondents, the Court below erred in placing reliance on oral evidence of P.Ws.1 to 4 and accepting the plea of the respondents that they had shifted from Erragadda to Borabanda in 1998 itself. 22. When such a fact could be established by documentary evidence and such evidence was not forthcoming from the respondents, the Court below erred in placing reliance on oral evidence of P.Ws.1 to 4 and accepting the plea of the respondents that they had shifted from Erragadda to Borabanda in 1998 itself. 22. Curiously in the additional affidavit filed in the Court below, the respondents (in Para-9 at page 6) contended that it was the petitioner who was responsible for getting the O.P.113/2003 filed through an advocate K.Harimohan Reddy, that they did not know K.Harimohan Reddy and without their knowledge, in the Claim Petition in O.P.No.113 of 2003, their Erragadda address was shown. They also contended that the petitioner managed to write the Erragadda address in the Claim Petition. This story is clearly incredible and unbelievable. No reasonable man can say that the contents of the petition, vakalat and affidavit signed by a party (including mention of their own address) were written by somebody else without their knowledge. Raising such pleas indicates the desperateness of the respondents to somehow or the other wriggle out the damaging admission about their stay at Erragadda address in the said O.P. 23. It is also not possible to accept the contention of the counsel for the respondents that respondents 7 and 8 are married and are residing along with their respective husbands at different addresses long before filing of the suit. No evidence as to place of residence of respondents 7 and 8 is placed before this Court or court below except Ex.P-4, a marriage card of respondent No.8, which would at best show that she is married. It is not evidence of her place of residence. 24. I am also of the view that the Court below perversely held that pleadings and material papers in the O.P. are not admissible proof of address of a party. When the pleading in the O.P. is signed by the respondents and it indicates that they are residing at Erragadda address, it amounts to an admission by them as to their place of residence. This obvious conclusion was not drawn by the Court below. 25. When the pleading in the O.P. is signed by the respondents and it indicates that they are residing at Erragadda address, it amounts to an admission by them as to their place of residence. This obvious conclusion was not drawn by the Court below. 25. It is also strange that the Court below took objection to the petitioner securing the certified copies of the pleadings and vakalat in the O.P. and filing them as Exs.R-1 to R4 on the ground that the petitioner got them through the counsel on record in the said O.P. In it’s opinion, it should have obtained them only by a third party procedure. It construed this as evidence of the petitioner’s tenacity to sustain the ex parte decree. In my opinion, this reasoning of the Court below is equally perverse. It ought to have given more weight to the contents of Exs.R-1 to R-4, particularly the mention of the Erragadda address by the respondents therein, instead of focussing on the manner in which the petitioner procured them. It should have seen that the respondents neither denied the fact that they filed O.P.No.113 of 2003 for compensation nor did they deny signing Exs.R-1 to R-4. This manner of appreciation of evidence by the Court below is strongly deprecated. 26. The Court below also relied on Ex.A-3 which had been marked in the suit by the petitioner. Ex.A-3 is a legal notice sent by the petitioner to the respondents prior to the filing of the suit which was returned with an endorsement that the addressees were continuously absent for 7 days. The Court below held that the endorsement on Ex.A-3 was not correctly appreciated in the judgment dt.08-11-2001 in O.S.No.36 of 2001. According to me, Ex.A-3 is not filed in the application filed to set aside the ex parte decree or in the application to condone the delay in filing the same. Its evidentiary value could have been appreciated only if and when the decree is set aside. Such an exercise cannot be done while considering the issue as to the condonation of delay in filing application to set aside the ex parte decree. In any event, it is quite possible that at the time when Ex.A-3 was sent, the respondents were probably out of station and therefore, it was returned with the said endorsement. Such an exercise cannot be done while considering the issue as to the condonation of delay in filing application to set aside the ex parte decree. In any event, it is quite possible that at the time when Ex.A-3 was sent, the respondents were probably out of station and therefore, it was returned with the said endorsement. If the respondents were not residing there, the postman would have said “no such addressee at this address” or “addressee left”. It is not possible to conclude from the endorsement on Ex.A-3 that the respondents had shifted from the Erragadda address to a different place. 27. It is also the plea of the respondents that the Erragadda property was orally gifted by them for a Masjid in 1998. Assuming this to be true, the Municipal record would establish this fact. Such a record was not placed before the Court. 28. Therefore, I am of the considered view that the finding of the Court below that the respondents were residing at the Borabanda address and not living at the Erragaddaaddress at the time of filing of the suit, is perverse and wholly unsustainable. 29. As regards the finding of the Court below that the summons through the Process Server were not served on the respondents in accordance with the provisions of C.P.C. is concerned, admittedly, the entire record of the Process Server relating to service of summons to the respondent was not available in the case record and it had been destroyed with the permission of the District Judge. In the absence of such a record, what is available is only the endorsement of the Section of the Court of Senior Civil Judge, Sangareddy, on the suit docket that summons to D-1 to D-8 through Court were returned, as the ladies present refused to take summons or to affix the same on the door. Much comment is made on this by the Court below. In my opinion, the observations of the Court below in this regard are purely based on conjunctures and surmises and it should have refrained from making them. It appears to have not noticed Rule 15 of Order V of C.P.C. which permits a Process Server to seek to serve the summons on an adult male or female member of the family of the defendants. It appears to have not noticed Rule 15 of Order V of C.P.C. which permits a Process Server to seek to serve the summons on an adult male or female member of the family of the defendants. When such service was refused by the ladies, who are adult female members of the family of the respondents, the only conclusion to be drawn is one of service of summons. This is also a glaring error in the order passed by the Court below. It ought to have given due weight to the consideration of the record of the Process Server by the Senior Civil Judge at Sangareddy before he set the respondents ex parte as admittedly the record of the Process Server would have been available before the Court at Sangareddy then. It cannot be presumed that the Court set the respondents ex parte without looking into the said record. 30. No doubt in SushilKumar Sabharwal (2 supra), the Supreme Court held that on the alleged refusal by defendant of the summons, the Process Server should affix a copy of the summons and the plaint on the wall of the premises and that he should make an endorsement to that effect on the back of the original summons; that this should be witnessed by persons who identified the defendant and his premises and witnessed such procedure. But it cannot be presumed, in the absence of the record of the Process Server in the present case, that such a procedure was not followed. 31. In this regard, one should also take note of second proviso to Order IX Rule 13 C.P.C. which states: “Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim”. 32. In the facts and circumstances of the present case, I am of the view that a presumption of service of notice of summons on the defendants/respondents is inevitable on account of the refusal to receive the summons by the female members of the family of the respondents at the Erragaddaaddress and the rejection of their plea that they were not residing there in 2001. The summons would have been attempted to be served giving sufficient time to the defendants to appear at the hearing and therefore, in view of second proviso to Order IX Rule 13 of C.P.C, the ex parte decree could not have been set aside by the Court below on an assumed irregularity in the service of summons. 33. In Nahar Enterprises (3 supra), the Supreme Court held that even though summons were served on the appellant therein after the date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons in view of Order IX Rule 6(1)(c) of C.P.C. This judgment is inapplicable to the facts of the case as it is not the case of the respondents that they had received the summons after the date fixed for their appearance. Admittedly, they were set ex parte on 23-08-2001 and the ex parte decree came to be passed only on 08-11-2001. Thus, if they had really received the summons after 23-08-2001, before 08-11-2001 they could have approached the Senior Civil Judge, Sangareddy stating the said fact and sought it’s setting aside by filing a petition under Order IX Rule 7 C.P.C. Therefore, there is no merit in this contention. 34. For the above reasons, I am of the opinion that the Court below acted perversely in allowing I.A.No.151 of 2008 and consequently I.A.No.67 of 2013 in O.S.No.36 of 2001 by its orders dt.13-03-2013. 35. Therefore, both the Civil Revision Petitions are allowed. No costs. 36. Miscellaneous applications, if any, pending in these Civil Revision Petitions shall stand closed.