ALAMELU AMMAL Vs. K GOPAL

JUDGEMENT

(1.) THIS revision is against an order dismissing the application for condonation of delay of 3459 days in filing an application under Sec.9of 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 parte 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.ANo.625 of 1993 on 18.1.1993 for condonation of delay of 3459 days in filing an application under Sec.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.

(3.) 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 seme 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 O.5, Rule 17,C.P.C. and the evidence of the fourth petitioner as P.W.I 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.