Rajappa and Smt. Venkatamma vs Puttappa @ Puthrappa

K. Gnanaprakasam, J.—The revision petitioners are the plaintiffs in O.S.No.102 of 1997 on the file of the District Munsif, Hosur.

2.The plaintiffs have filed the suit for partition and allotment of 5/12th shares to them. The plaintiffs have also obtained an exparte preliminary

decree on 6.8.1997 and the first defendant has filed an application to set aside the exparte preliminary decree and the same was allowed by the

trial court by an order dated 11.10.2000 in I.A.No.578 of 1999. Aggrieved by the same, the plaintiffs have filed this revision petition.

3.The respondent-first defendant in his affidavit filed in support of the petition to set aside the exparte preliminary decree has stated that he came to

know about the suit only when the advocate-commissioner came to measure the suit properties and the commissioner has informed him that he had

to measure and to divide the properties as per the decree passed by the court; that thereafter the first defendant has made enquiries after engaging

the advocate and came to know that the exparte preliminary decree was passed on 6.8.1997. It is also stated in the affidavit that he has got the

valid defence as the second plaintiff is not the wife of late Sevappa and the first defendant is not at all the son of Sevappa; that the suit properties

were gifted to the first defendant by gift deed dated 19.8.1966 executed by his grand father Peddha Nanjappa and therefore, the plaintiffs have no

right to seek partition in these properties.

4.The application filed by the first defendant was resisted by the plaintiffs and they have also filed counter wherein it is stated that they have taken

summons and notices through court and by post to the defendants on several times and they wantonly refused to receive the summons and notices

in P.O.P.No.1 of 1997 in O.S.No.102 of 1997 and also in I.A.No.1166 of 1997. Even prior to the visit of the suit properties by the advocate-

commissioner, he had sent notice through certificate of posting to the defendants and the said notices were served to them and the defendants had

full of knowledge about the entire proceedings, even prior to the visit of the advocate-commissioner and therefore, the petition filed by the first

defendant to set aside the exparte preliminary decree is not sustainable. The trial court has examined the matter at a length. It appears that on all

stages, that is, in P.O.P. No.1 of 1997, in O.S.No.102 of 1997 and also in I.A.No.1166 of 1997, the summons and notices sent through court

were said to have been refused by the defendants and they were affixed on the outer door of the house and therefore, they were set exparte. But

the defendants have contended that no such notices were received by them and the service of the summons to the witnesses were sent to one and

the same persons and those persons were procured by the plaintiffs to obtain such an endorsement. But however, the trial court has found that the

said statement of the defendants is not correct as Gopalan and Raman were the witnesses on one occasion and Gopalan and Munusamy were the

witnesses on another occasion. It also appears that the date of hearing was published in a newspaper. Despite this, the defendants have not chosen

to appear. The trial court has observed that on all occasions, the endorsement of service was that the defendants refused to accept to receive the

summons and notices and they have set exparte and though the service by affixure and publication are sufficient, they are not good and valid equal

to the personal service of summons and notices to the parties concerned. In the said view of the matter and also in the interest of justice, the trial

court has allowed the petition on costs.

5.Learned advocate for the revision petitioner has submitted that the summons and notices to the defendants have been duly served as

contemplated under Order 5 Rules 11,12 and 17 CPC., and that therefore, the service is a valid service and the defendants cannot pretend as if

they have not received summons and notices in any case. Now the only question that has got to be considered in this petition is; whether there was

an effective service to the defendants.

6.It is the contention of the defendants that they came to know about the exparte preliminary decree only when the advocate-commissioner came

to the suit properties and immediately they have filed the application to set aside the exparte preliminary decree passed on 6.8.1997 and the said

petition has been filed from the date of their knowledge. It is the specific case of the defendants that they have no prior knowledge of the

proceedings. But however, the learned counsel for the petitioners-plaintiffs would point out that the service of summons and notices taken on every

stage were not received by the defendants wantonly and therefore, they were affixed on the outer door of the house of the defendants and it is

valid and good service and therefore, the trial court was correct in passing an exparte preliminary decree. But at the same time, we are not able to

see that the defendants were served personally on any one occasion and on all occasions, the summons and notices were affixed on the outer door

of the house of the defendants. Of course, the service by affixure is a valid service and it is the presumption that it was duly served, but the said

presumption is rebutable one. In this case, the defendants have stated that they have not refused to receive the summons and notices and the

defendants were also examined and gave evidence to that effect. Contra evidence has also let in by the plaintiffs. But however, the fact remains that

there is no personal service to the defendants and they have come forward with the application to set aside the exparte preliminary decree on the

ground that they have no knowledge prior to the visit of the advocate-commissioner. If the defendants want to keep silent forever, there is

absolutely no necessity for them to file the petition to set aside the exparte preliminary decree, when they came to know about it through the

advocate-commissioner. It is further seen that the defendants are having a valid defence to the suit and therefore, I am of the opinion that the

defendants have got to be given an opportunity to defend the suit. In fact the trial court was also on the same view and only in the said context,

allowed the petition on payment of cost. I am also of the further opinion that the primary function of a court is to adjudicate the dispute between the

parties and to advance substantial justice and if the application filed by the defendants to set aside the exparte decree is not allowed, his right to

defend the case, on merits, would be denied and his right to the properties will be at stake. But at the same time, I am also of the view that the

petitioners-plaintiffs who were put to inconvenience must be compensated by way of costs. In the said circumstances, I am not inclined to interfere

with the order passed by the trial court. But however, I feel that the cost awarded by the trial court appears to be very less and the same is

enhanced to Rs.2,500/- which the respondent-first defendant is hereby directed to pay the said sum of Rs.2,500/-(Rupees two thousand and five

hundred only) as costs within two weeks from the date of receipt of a copy of this order before the trial court.

7.In the result, this revision petition is dismissed, but however the cost awarded by the trial court is enhanced from Rs.500/- to Rs.2,500/-.

Consequently, no order is necessary in C.M.P.No.4353 of 2001 and the same is closed.