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2015 DIGILAW 3551 (MAD)

Shaik Noorudeen v. A. Azizul Karim

2015-10-29

D.HARIPARANTHAMAN

body2015
ORDER The revision petitioner is the first defendant in O.S.No.457 of 2011 on the file of learned XII Assistant Judge, City Civil Court, Chennai. The first respondent herein is the plaintiff therein. The details of the suit are not necessary for the disposal of the present revision petition. 2. The grievance of the revision petitioner is that he was not served with suit summons. But, he was set exparte and an exparte decree was passed against him. Hence, he filed an application in I.A.No.4699 of 2014 in O.S.No.457 of 2011 to condone the delay of 678 days in filing the application to set aside the exparte decree. 3. Learned XII Assistant Judge, City Civil Court, Chennai rejected I.A.No.4699 of 2014 in O.S.No.457 of 2011 on 8.1.2015. The revision petitioner filed this revision petition against the aforesaid order. 4. When the matter listed before this Court on 29.7.2015, this Court passed the following order:- " It is brought to the notice of this Court that the entire records pertaining to O.S.No.457 of 2011 on the file of XII Assistant Judge, City Civil Court, Chennai, have been misplaced. Therefore, the Registry is directed to call for a report from the XII Assistant Judge, City Civil Court, Chennai, with regard to the same and also give a report with regard to the service of suit summons in this matter. The Registry is directed to place the report of the XII Assistant Judge, City Civil Court, Chennai, before this Court on 10.8.2015. Post on 10.8.2015. " 5. This Court in the aforesaid order dated 29.7.2015, directed the Registry to call for a report from the learned XII Assistant Judge, City Civil Court, Chennai, with regard to the allegations made by the learned counsel for the revision petitioner that the entire records are misplaced. This Court has also directed the Registry to get a report from the learned XII Assistant Judge, City Civil Court, Chennai, with regard to the service of suit summons in this matter. 6. Pursuant to the same, the learned XII Assistant Judge, City Civil Court, Chennai, gave a report dated 7.8.2015 and the said report was placed before me. As per the said report, the learned XII Assistant Judge, City Civil Court, Chennai stated that the bundle in O.S.No.457 of 2011 is misplaced and is yet to be traced. 6. Pursuant to the same, the learned XII Assistant Judge, City Civil Court, Chennai, gave a report dated 7.8.2015 and the said report was placed before me. As per the said report, the learned XII Assistant Judge, City Civil Court, Chennai stated that the bundle in O.S.No.457 of 2011 is misplaced and is yet to be traced. The said report of the learned XII Assistant Judge does not answer the other issue raised by this Court as to the service of suit summons. Hence, on 3.9.2015, after perusing the aforesaid report, I directed the Registrar General of this Court to enquire into the matter and if necessary, to order vigilance enquiry as serious allegations are made. 7. Thereafter, the Registrar General gave a report to this Court dated 14.10.2015. It is useful to extract paras 2, 3 and the relevant passage in para 8 of the report of the Registrar General and the same is extracted hereunder:- " 2. The above case papers did not contain any material pertaining to the summons in O.S.No.457/2011. The extract of 'B' diary also does not throw any light on that score as the first entry dated 11.3.2011 is to the effect that "Defendants called absent, set exparte". 3. The judgment in O.S.No.457/2011 dated 13.2.2012 (reconstructed) does not contain anything about service of summons to the first defendant/revision petitioner. At page No.5, para No.3 of the judgment, it has been stated as follows:- "3. On the side of the plaintiff, proof affidavit of P.W.1 was filed and Exhibits A.1 to A.3 were marked." 8. ... However, in the disposal of the said delay condonation petition, in the absence of the case record in O.S.No.457/2011 of course reconstructed partially, establishes that the same has been disposed of hastily." 8. In view of the aforesaid finding of the Registrar General, I have no hesitation to set aside the order of the Trial Court. 9. In the result, the order of the learned XII Assistant Judge, City Civil Court, Chennai, dated 8.1.2015 made in I.A.No.4699 of 2014 in O.S.No.457 of 2011 is set aside and the civil revision petition is allowed. In view of the aforesaid finding of the Registrar General, I have no hesitation to set aside the order of the Trial Court. 9. In the result, the order of the learned XII Assistant Judge, City Civil Court, Chennai, dated 8.1.2015 made in I.A.No.4699 of 2014 in O.S.No.457 of 2011 is set aside and the civil revision petition is allowed. The matter is remitted back to the Trial Court to dispose of the same on merits and in accordance with law and the Trial Court shall consider the allegations made by the revision petitioner that he was not issued with suit summons and the finding on the application in I.A.No.4699 of 2014 in O.S.No.457 of 2011 depends upon the said allegation of the revision petitioner. No costs.