POONGAVANA GOUNDER Vs. RAMASAMY GOUNDER

JUDGEMENT

(1.) This Civil Revision Petition has been filed against the order passed in I.A.27/2009 in O.S.No.80/2008 dated 09.03.2012 on the file of the Sub-Court, Arni, Tiruvannamalai District, rejecting the application filed by the petitioner seeking to condone the delay of 21 days in filing the petition to set aside the ex-parte decree passed on 30.09.2008.

(2.) Heard the learned counsel for the petitioner as well as the respondent.

(3.) The respondent herein filed the suit against the petitioner for partition in O.S.No.80/2008. The petitioner and the respondent are brothers. The said suit came to be decreed ex-parte on 30.09.2008. The petitioner herein, as the defendant, filed an application under Section 5 of the Limitation Act, seeking to condone the delay of 21 days in filing the set aside petition by contending that the petitioner, as the defendant, did not refuse to receive the suit summon on the date when it was attempted to be served on him and he only instructed the Court Amin that he will receive the summon after consulting his counsel. It is also stated by the petitioner in the affidavit filed in support of the application that he is an innocent man and the Amin also informed him that he will come back on the next day with the suit summon to serve on him. However, the Amin did not return next day to serve the suit summon. Therefore, the absence of the petitioner on the date of hearing, namely, 30.09.2008 is neither wilful nor wanton.