The revision petitioner is the 11th defendant in the suit O.S.No.50 of
1988 on the file of the Sub Court, Pattukkottai. The 11th defendant filed
I.A.No.259 of 1998 under Section 5 of the Limitation Act, to condone the delay
of 545 days in filing the petition to set aside the ex parte decree dated
7.10.1991 in that suit. The petition after contest was dismissed as per order
dated 9.10.1998. The 11 th defendant has challenged the said order in this
revision.
2. In the affidavit filed in support of the petition I.A.No.259 of
1998, it is stated that the first respondent/plaintiff filed the suit for
declaration in respect of the plaint 'A' and 'B' schedule properties and also
for possession of the plaint 'B' schedule property. The suit was originally
filed against the defendants 1 to 7
on
19.9.1987 and as per order dated 26.11.1990 made in I.A.No.654 of 1990 the
defendants 8 to 12 were added. But the revision petitioner/11th defendant was
not served with suit summons. The records were created as if the suit summons
was served upon her and was set ex parte and ex parte decree was passed in the
suit on 7.10.1991. She came to know about the ex parte decree only after
receipt of notice on 26.11.1996 in Execution Petition filed by the plaintiff
for delivery of the plaint 'B' schedule property. She entered appearance
though her advocate Vaithyanathan of Pattukkottai to whom she requested to
take step to set aside the ex parte decree. The said advocate only filed
vakalath in execution petition, but not filed counter, because of which,
delivery was ordered in the execution petition. She came to know about the
same when the Court bailiff came to hand over possession. Since there was
summer vacation, she could not file the petition immediately. On equiry she
came to know that records have been created as if she received suit summons
after signing on 17.1.1991, on which date she was not in the village and she
did not sign in the suit summons as "Rethinambal"(buj;jpdk;ghs;). She used to
sign only as "Rethinam"(buj;jpdk;). She does not know the witness who has
signed as "Sundaram" in the summons, and no such person is residing in
Kottaikulam street. The signature in the summons has been forged. In the
circumstances, there have been delay of 545 days in filing the petition to set
aside the ex parte decree dated 17.1 0.1991.
3. The petition was resisted in the counter filed by the first
respondent/plaintiff, in which it is stated that notice was served to the
revision petitioner/11th defendant and she remained ex parte after receiving
the suit summons. The suit was decreed only after contest by other
defendants. The suit was decreed for the relief of declaration in respect of
'A' and 'B' schedule properties and also possession in respect of 'B' schedule
property. The execution petition for delivery of possession was filed in
December, 1996. The revision petitioner/11th defendant after receiving notice
in execution petition engaged advocate and since her counsel informed that no
counter was filed, delivery was ordered on 23.2.1998. Since it was resisted
delivery could not be effected then. Again on the petition filed for police
help, etc., and to deliver in the presence of Village Administrative Officer,
it was ordered and that time also delivery could not be effected stating that
there have been house in the suit property. Again the
petition was filed to deliver possession after removing the
thatched house and by allowing the petition delivery was ordered. Now at that
stage, the petition was filed to condone the delay of 545 days in filing the
petition to set aside the ex parte decree. The other averments in the
petition have been denied. Each day delay has not been satisfactorily
explained. The petition was also resisted that since the suit was decreed
after contest, the remedy available to the revision petitioner/11th defendant
is only to prefer appeal in this Court.
4. The trial Court considering the materials available on record and
considering the facts that the suit was contested by five defendants among 12
defendants and that it was decreed only after full trial and that the delay of
545 days in filing the petition to set aside the ex parte decree has not been
satisfactorily explained and therefore, in that view, dismissed the petition.
The order is challenged in this Civil Revision Petition.
5. Heard the learned counsel for the revision petitioner/11th
defendant and the learned counsel for the first respondent/plaintiff.
6. The learned counsel for the revision petitioner/11th defendant
contended that in the suit the summons was not served upon the revision
petitioner/11th defendant because of which she could not contest the suit.
The revision petitioner/11th defendant came to know about the ex parte decree
only after receipt of the notice in the execution petition filed for delivery
of plaint 'B' schedule property and therefore, there have been delay of 545
days in filing the petition to set aside the ex parte decree. It is also
submitted by the learned counsel for the revision petitioner/11th defendant
that because the counsel, who was engaged by the revision petitioner/11th
defendant to resist the execution petition, did not properly contest the
execution petition and not filed counter and as such delivery was ordered.
Further the learned counsel also submitted that the said counsel also did not
take steps to set aside the ex parte decree in the suit.
7. The learned counsel for the first respondent/plaintiff argued that
the revision petitioner/11th defendant was served in the impleading petition
I.A.No.465 of 1990 and she did not choose to contest the said petition.
Further, the learned counsel submitted that she was also served with suit
summons for the hearing on 31.1.1991 and as per the endorsement in the suit
notes-paper, the 11th defendant was served with suit summons and since she did
not appear, she was set ex parte. The suit was contested by the defendants 2,
6, 7, 9 and 12 by filing written statements and considering the evidence oral
and documentary let in on both sides, the suit was decreed as prayed for with
cost on 7.10.1991. Thereafter, the first respondent/plaintiff filed execution
petition for delivery of possession in respect of the plaint 'B' schedule
property in which also the 11th defendant admittedly entered appearance
through her advocate and since no counter was filed, delivery was ordered and
at that stage to protract the proceedings, the 11th defendant filed the
petition I.A.No.259 of 1998 to condone the delay of 545 days in filing the
petition to set aside the ex parte decree without showing sufficient reasons
to condone the enormous delay. Since the 11th defendant was set ex parte as
per the endorsement in the suit notes-paper that she was served with suit
summons, which is now not available with records, such endorsement with regard
to serving of the summons on the 11th defendant cannot be challenged. In this
regard the learned counsel for the first respondent/ plaintiff has placed the
following reliance:-
(1) John Carapiet Galstaun, Decree holder, Opposite Party, Appellant
vs. - Syed Mahammad Hussain Choudhury, judgment-debtor, Petitioner,
Respondent reported in Volume XXXVI The Calcutta Weekly Notes, page 242, in
which the Calcutta High Court has held:-
Where the return of the service of process issued under Order 21 rule
22 of the Civil Procedure Code shows that the process has been duly served,
there is a presumption under Section 114 of the Evidence Act that the official
act of serving the process was rightly carried out and it would rest with the
person challenging the return to rebut the presumption.
(2) Sachitanandan Prasad vs. - Janak Prasad Gosain and others
reported in A.I.R. 1958 Patna 577 (V 45 C 189), in which it is held by the
Patna High Court:-
The certificate in the order sheet of the Court in the proceedings
for commutation of rent, showing service of notice on the landlord raises a
presumption that the notice was validly and properly served upon him.
(3) Green View Radio Service vs. - Laxmibai Ramji and another
reported in A.I.R. 1990 Supreme Court 2156, in which the Bombay High Court
has held:-
Where a notice of eviction is sent by registered acknowledgement due
to the correct address and the acknowledgement is received back with
recipients signature, there is presumption that the addressee has received the
letter in due course of business.
8. It appears that the 11th defendant/the revision petitioner was
served with notice in the impleading petition I.A.No.465 of 1990, but she
remained ex parte. The impleading petition I.A.No.465 of 1990 was allowed on
13.11.1990, since no counter was filed by the proposed 1 2th defendant and the
proposed defendants 9 to 11 remained ex parte. As per notes-paper, it
appears, the defendants 9 to 12 newly added, entered appearance through
advocate and took time to file written statement. Though the 11th defendant,
the revision petitioner was served with suit summons for the hearing on
31.1.1991, as per the endorsement on that date by the clerk concerned pursuant
to the report of the Nazir, she did not appear on that day and after actually
perusing such summons served on the 11th defendant, she was set ex parte. It
is futile to contend now that the 11th defendant was not served with suit
summons. The presumption is to be drawn pursuant to the endorsement in the
suit notes-paper on the basis of the junior bailiff (process server) report
and perusing the suit summons that the 11th defendant was actually served with
such suit summons for the hearing on 31.1.1991 in the suit. It appears that
the 11th defendant has also seen the said suit summons, in that in the
affidavit, it is stated by her that she did not sign in the said summons as
Rethinambal, since she used to sign only as Rethinam, but still she did not
take steps for comparison of her signature in the suit summons along with her
admitted signatures and to obtain report of the Handwriting Expert.
Only on receipt of the notice in the execution petition filed for delivery of
the plaint 'B' schedule property, with a view to delay the proceedings
further, the 11th defendant filed the petition, subject matter of this
revision under Section 5 of the Limitation Act to condone the delay of 545
days in filing the petition to set aside the ex parte decree. Though it is
stated that the counsel engaged by her to contest the execution petition was
instructed to take steps for setting aside the ex parte decree of the suit and
the said counsel did not take steps and also not filed counter in the
execution petition because of which delivery was ordered in the execution
petition, she has not examined the said counsel.
10. As
pointed out by the trial Court, though the 11th defendant came to know about
the ex parte decree only on receipt of the notice in the execution petition,
she engaged advocate and instructed to file necessary petition to set aside
the ex parte decree and also to file counter in the execution petition, she
could have pursued the matter as to whether such petition was filed to set
aside the ex parte decree by the counsel, in that she is residing at
Pattukkottai where his counsel is also residing. Though she was also fully
aware of the said proceedings and also execution proceedings from the time she
was impleaded in the suit since she has been residing near the house of the
other defendants, who contested the suit and despite the said fact, the suit
was decreed since she did not choose to contest the suit and allowed the suit
to be decreed ex parte and uncontested by her and only at the time of delivery
of the property, to delay the proceedings as much as possible she thought fit
to file the petition seeking to condone the delay of 545 days in filing the
petition to set aside the ex parte decree.
Admittedly, the 11th defendant received notice in execution proceedings on
26.11.1996 , but she filed the petition I.A.No.259 of 1998 to condone the
delay of 545 days in filing the petition to set aside the ex parte decree only
on 8.6.1998 stating that she was under the impression that her counsel could
have taken steps to set aside the ex parte decree which is unbelievable as
pointed out by the trial Court that she had to wait for about two years after
entrusting the matter to the counsel. Therefore, considering all these facts,
the trial Court has rightly dismissed the petition that no sufficient reason
was shown by the 11th defendant to condone the delay of 545 days in filing the
petition to set aside the ex parte decree. It appears the delivery of ' B'
schedule property already was effected and possession was taken by the first
respondent/plaintiff.
12. In the result, this Civil
Revision Petition is dismissed with cost confirming the order dated 9.10.1998
made in I.A.No.259 of 1998 by the trial Court.
Index :Yes.
Internet:Yes.
ts.
To
1) The Subordinate Judge,
Pattukkottai.
2) The Section Officer,
V.R. Section,
High Court,
Madras.