Alamelu Ammal and Others vs K. Gopal and Others

Srinivasan, J.—This revision is against an order dismissing the application for condonation of delay of 3459 days in filing an application u/s 9

of the City Tenants'' Protection Act. Petitioners were set ex parte in O.S. No. 3286 of 1981 and an ex parte decree was passed on 12.1.1982 in

the said suit. Petitioners filed an application to set aside the ex pane decree and by orders dated 22.12.1992, the decree was set aside and that

was after the condition imposed by the court of payment of costs of Rs. 100 was satisfied by the petitioners.

2 Petitioners filed I.A. No. 625 of 1993 on 18.1.1993 for condonation of delay of 3459 days in filing an application u/s 9 of the City Tenants''

Protection Act. The court below has held that the delay is not properly explained and the petitioner are not entitled to have the delay condoned.

The contention of the petitioners'' counsel is that there was no question of delay as the application had been filed within thirty days from the date

when the ex parte decree was set aside and the application must be deemed to be in time. That contention was rejected by the court below.

In this revision petition, it is argued by the petitioners'' counsel that the application to set aside the ex parte decree was itself filed only on the

ground that there was no service of summons on the petitioners in the suit and once the decree is set aside, it must be deemed that the court had

accepted the case of petitioners that summons was not served on the petitioners in the suit. Learned Counsel further contended that the suit having

been restored to file and no summons in the suit having been served on the petitioner they are entitled to maintain an application u/s 9 of the Act.

There is no merit in this contention. It is seen that the order made on the application to set aside the ex pane decree, did not give any finding on

the question, whether the petitioners were served or not. The order simply states, ""Petition is allowed on payment of costs of Rs. 100 on or before

21.12.1992. Call on 22.12.1992."" As the amount was paid, consequential order was passed on 22.12.1992, allowing the petition. As there is no

finding in the said order, no inference can be drawn in favour of the petitioners that their case was accepted. On the other hand, court below has

found from the records of the court, as well as Exs. A-1 to A-3 marked in the present case, that summons was served on the petitioner by

affixture, as the petitioners refused to receive the summons. Relying on the same the court below held that the limitation started running from the

date of such service. Learned Counsel contends that was not effected in accordance with the provisions of Order 5, Rule 17, C.P.C. and the

evidence of the fourth petitioner as P.W. 1 in the present proceedings, will prove the same. I have gone through the deposition of P.W. 4 in the

present case. He has not stated anywhere that summons was not affixed in the residence of the petitioners. He has denied the suggestion that

petitioners have refused to accept the service when the summons was served on them. He has however admitted that the address given in the

summons is correct and normally if any tapal is sent, it will reach the place.

In the circumstances, the presumption u/s 114(e) of the Indian Evidence Act will certainly apply. In the present case, the records available in the

court show that summons was affixed and service has been effected by such affixture. Hence, limitation has to be reckoned from the date of such

service. It is not open to the petitioner to contend that the limitation will not start running from the date of such service.

Learned Counsel places reliance on the judgment of this Court in Mrs. Emkamma Bai v. Ravikumar (1992) 1 L.W. 54. In that case, summons

was served on a person found in the house, who was not authorised to receive the summons. Relying on the provisions of Order 5, Rule 15,

C.P.C. I held that there was no proper service as contemplated in the Code of Civil Procedure. Following the said judgment, another learned

Judge has, in Abdul Salam Rowther Vs. State Bank of India, , held that when summons is said to have been affixed ort the door of the house, the

requirements of Order 5, Rule 17, C.P.C., should be strictly complied with. In the absence of such compliance, summons could not be said to

have been served properly. Neither of the rulings will apply to the present case. Prima facie, the records show that summons was affixed and it has

not been controverted by P.W. 1 who has entered the witness box on behalf of the petitioners. In the circumstances, no inference can be drawn

that the affixture was not in accordance with the provisions of the Code of Civil Procedure.

In the result, there is no merit in this civil revision petition. This C.R.P. is dismissed.