ORDER : B. Veerappa, J. The defendant filed the present civil revision petition against the order dated 16th December, 2014 made in Misc. Appeal No. 30 of 2013 on the file of the Additional Senior Civil Judge, Chikkamagalur, dismissing C. Mis. No. 22 of 2012 on the file of Civil Judge, Chikkamagalur, to set aside the ex parte decree made in O.S. No. 104 of 2001. 2. The respondent who is the plaintiff before the Trial Court in O.S. No. 104 of 2001 filed a suit for partition and separate possession of properties contending that the plaintiff and defendants are cousin brothers. The father of the plaintiff and father of defendant were brothers. During their lifetime, they lived together and jointly cultivated the suit schedule property and had possession over the same. Therefore, they sought for partition of the schedule property. 3. The present petitioner who was the defendant in the said suit was placed ex parte, holding that in spite of service of summons, the petitioner did not contest the claim. On the basis of the pleadings and evidence of P.W. 1, suit came to be decreed on 18-3-2003, holding that the plaintiff is entitled for possession of half share in the suit schedule property and also for mesne profits. Against the said ex parte judgment, the present petitioner filed civil miscellaneous to set aside the ex parte judgment made in O.S. No. 104 of 2001. The said miscellaneous petition came to be dismissed on the ground of delay and laches. Against the said order, the present petitioner filed Misc. Appeal No. 6 of 2010 before the Additional Senior Civil Judge, Chikkamagalur, who, after hearing both the parties, by an order dated 9th August, 2012, allowed the appeal and set aside the order dated 30-1-2010 passed on I.A. No. and allowed the application for limitation with costs of Rs. 1,000/- and miscellaneous petition was remitted to the Trial Court for fresh adjudication on merits. 4. After remand from the lower Appellate Court, the Trial Court, after hearing both the parties, by the impugned order dated 27th August, 2013 made in C. Mis. No. 23 of 2012, has dismissed misc. petition filed under Order 9, Rule 13 mainly on the ground that in the summons issued to the present petitioner, the signature of the petitioner is found. Against the said order, he has filed Misc. No. 23 of 2012, has dismissed misc. petition filed under Order 9, Rule 13 mainly on the ground that in the summons issued to the present petitioner, the signature of the petitioner is found. Against the said order, he has filed Misc. Appeal No. 30 of 2013 before the Senior Civil Judge, Chikkamagalur, who, after hearing both the parties, by the impugned order dated 16th December, 2014, dismissed the miscellaneous appeal reiterating the finding recorded by the Trial Court. Hence, the present civil revision petition. 5. I have heard the learned Counsels for the parties to the lis. 6. Sri M.H. Sawkar, learned Counsel for the petitioner vehemently contended that both the Courts below committed an error in dismissing the petition under Order 9, Rule 13 of the Civil Procedure Code, 1908 to set aside the ex parte judgment and decree made in O.S. No. 104 of 2001 without application of mind and ignoring the rights of the parties involved in respect of immovable suit schedule property. He also contended that the impugned order passed by the Courts below mainly on the ground summons served on the petitioner in the absence of any service as contemplated under Order 5, Rule 1 of the Civil Procedure Code, 1908. Therefore, he sought to set aside the impugned orders passed by the Courts below. 7. Per contra, Sri M.H. Prakash, learned Counsel for respondent-original plaintiff sought to justify the impugned order passed by the Courts below. He strenuously contended that both the Courts concurrently held that in spite of service of summons to the present petitioner who was the defendant, he did not care to appear before the Court. Therefore, the Trial Court did not have any option, but proceeded as per the pleadings and suit summons. Therefore, service was held sufficient. Therefore, it is not a case to set aside the judgment and decree passed by the Trial Court in O.S. No. 104 of 2001. Therefore, he sought dismissal of the revision petition. 8. In view of the rival contentions urged by the learned Counsels for the parties, the only point that arises for consideration in this petition is: "Whether the Courts below were justified in rejecting the miscellaneous petition under Order 9, Rule 13 of CPC, to set aside the ex parte decree passed in O.S. No. 104 of 2001 in the facts and circumstances of the case?" 9. I have given my anxious consideration to the arguments advanced by the learned Counsels for the parties and perused the entire material on record. 10. It is not in dispute that the present respondent who was the plaintiff before the Trial Court, filed O.S. No. 104 of 2001 for partition and separate possession in respect of the suit schedule property contending the suit schedule property is joint family property of the plaintiff and defendant. It is also not in dispute that the present petitioner was placed ex parte before the Trial Court. Though the learned Counsel for the petitioner submits that summons were not served to the petitioner, but the fact remains that both in the original suit as well as miscellaneous appeal, both the Courts concurrently held that summons were served. The fact remains that the suit is filed for partition and separate possession in respect of immovable property. If an opportunity is given to the defendant to contest the original suit by imposing reasonable costs to the plaintiff, no prejudice would be caused to the plaintiff as the material documents indicates that he remained ex parte before the Trial Court. The substantial rights of the parties should not be deprived on technicalities. At the same time, the defendant should have been more vigilant. It shows the proceedings conducted by the defendant in the original suit and appeal that he is not vigilant to prosecute the proceedings. At the same time, the Court should not forget that when the rights of the parties are involved in respect of the immovable property, it is well-settled that when substantial justice and technicalities fitted against each other, only substantial justice should prevail and the other side cannot claim to have a vested right when injustice is being done because of the non-deliberate action of the defendant and it is also borne in mind that there is no presumption that the deliberate act of the defendant on account of negligence, the litigant can stand the benefit by the said act. It is observed by the Hon'ble Supreme Court in the case reported in Dhiraj Singh v. State of Haryana, (2014) 14 SCC 127 in para 16 as under: "16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, (1987)2 SCC 107 , wherein it is stated in para 3 as under: "3. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, (1987)2 SCC 107 , wherein it is stated in para 3 as under: "3. The Legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that: (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. (4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 11. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 11. It is well-settled that judiciary is respected not on account of its power to legalise injustice on technical grounds, but it is capable of removing injustice and is expected to do so. 12. Keeping in mind the well-established principles stated supra and facts and circumstances of the case, taking into consideration that the suit is in respect of immovable property of joint family, the parties should not deprive their legitimate rights by way of technicality. Ultimately, it is for the parties to adjudicate the rights by adducing oral and documentary evidence on record to establish their independent right in respect of immovable property. 13. For the reasons stated above, the point raised in the present civil revision petition has to be answered in the negative holding that the Courts below are not justified in rejecting the petition filed by the petitioner under Order 9, Rule 13 of CPC, to set aside the ex parte decree passed in O.S. No. 104 of 2001. At the same time, we cannot forget that the petitioner has dragged the respondent from 2001 till today to different Courts. Therefore, while allowing the application, the respondent has to be compensated by imposing appropriate costs. 14. In view of the aforesaid reasons, civil revision petition is allowed and the impugned order dated 16th December, 2014 passed in Misc. Appeal No. 30 of 2013 on the file of I Additional Senior Civil Judge, Chikkamagalur, confirming the order dated 27-8-2013 made in C.Mis. No. 23 of 2012 on the file of Additional Senior Civil Judge, Chikamagalur, are set aside. The Original Suit No. 104 of 2001 is restored to file subject to payment of costs of Rs. 15,000/- by the defendant to the respondent/plaintiff before the Trial Court on the next date of hearing. The Trial Court shall proceed in the suit on merits after giving opportunity to both the parties and pass appropriate judgment and decree, in accordance with law. Parties are directed to appear before the Trial Court on 24-11-2016.