Mohanraj v. Pandjavarname
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.07.2016
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM Civil Revision Petition (PD) Nos.1166 of 2016 & C.M.P.No.6361 of 2016 Mohan ... Petitioner vs 1.Pandjavarname 2.Elamurugan ... Respondents Civil Revision Petitions filed under Article 227 of the Constitution of India against the order of learned District Court Judge, Karaikal, passed in I.A.No.128 of 2015 in O.S.No.29/2012 .
For Petitioners :
Mr.S.Sounthar For Respondents :
No Appearance for R1 and 2 *****
O R D E R
This revision challenges the order of learned District Court Judge, Karaikal, passed in I.A.No.128 of 2015 in O.S.No.29/2012.
2. The respondents preferred the suit seeking specific performance of agreement for sale dated 30.11.2009. The petitioner/defendant had been set ex-parte and having suffered an ex-parte decree, the petitioner moved
I.A.No.128/2015 seeking condonation of delay of 137 days in his filing the setting aside application. It is the contention of the petitioner/defendant that summons in the suit had not been duly served on him and that he came to know of the ex-parte decree only after receiving the summons on 22.05.2015 in E.P.No.44/2015 moved in the suit. Court below accepted the contention of the respondents that the summons in the suit had been properly served by affixture on the door of the petitioner's residence and in doing so, it has reasoned that a processor had been examined who deposed that he visited the petitioner's premises on 30.07.2012 and as his wife refused to accept the summons he had effected affixture.
Informing that when notice had been issued in Execution Petition, petitioner had received the same, the contention of his having left his home owing to matrimonial dispute was unacceptable and that the contention of the petitioner not having received any valid notice was affront to the Court, Court below had dismissed the application imposing costs on the petitioner in Rs.3,000/- costs.
3. Heard the learned counsel for petitioner.
4. From the very order of the Court below it can be gathered that evidence regards the manner in which affixture of the suit summons came to be effected against the petitioner was sought to be established only through
evidence of Court witness no.1 in I.A.No.128/2015. Or.5 R.19 reads as follows:
19.
Examination of serving officer:- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit" A bare reading of the above rule makes clear that before the Court decides to accept the position of substituted service by affixture, it has to be satisfied that refusal of receiving of summons had been occasioned in the case and for that purpose affidavit of the process server informing the factual position must be before Court or, in the alternative the process server may be examined in the Court to substantiate such position.
In fact the rule informs that even in face of an affidavit of the process server, the Court may choose to examine the process server on the point. Unless the exercise as required in Or.9 R.5 C.P.C is completed, it would be erroneous to set the defendant ex-parte on presumption of substituted service by affixture.
5. For the said reason this revision shall stand allowed. I.A.No.128/2015 shall stand allowed. Court below now take up the application filed by the petition under Or.9 R.13 C.P.C on merits. Pending decision therein the
C.T.SELVAM, J kpr proceedings in O.S.No.29/2012 on the file of learned District Judge, Karaikal shall stand stayed.
15.07.2016 Index:yes/no Internet:yes To The Judge, District Court, Karaikal Civil Revision Petition (PD) No.1166 of 2016