VASU Vs. SAROJA AMMAL

JUDGEMENT

(1.) THIS revision is against the order passed by the learned district Munsif, Polur dated 23. 8. 1994 in LA. No. 89 of 1994 dismissing the petition filed under Sec. 5 of the Limitation Act.

(2.) THE petitioner in his affidavit contends as follows: the plaintiff has filed the suit against the petitioner and others for declaration and for recovery of possession. THE petitioner came to know of the same only the previous day when one Ponmudi came to him and quarrelled with him stating that he had sold a property in dispute to him. THE property belonged to the father of the petitioner. One Dhanammal has filed the suit claiming a right in the property. Ponmudi the subsequent purchaser of the property from Sundaram pillai to whom the petitioner has sold the suit property. On verification, the petitioner came to know that he was set ex parte on 3. 5. 1988 without any service of summons or notice. THE petitioner has filed an application to set aside the ex parte decree. Even though he has no knowledge of the suit, by way of abundant caution, he has filed the. application to condone the delay.

(3.) P. W. 1 has stated during cross examination that he was not aware that he was impleaded as the 27th defendant and no notice was received by him since none has come to him. At a later stage of cross-examination, he would say that the signature in the summons available in the court records appear to be his signature. But, he would contend that, it was not his signature. He would also add that in the file in the notice, signature of his mother Sakkubai and grandmother Mannammal are there. He would add that the signature shown to him appear to be his signature. C. W. 1 the process server would say that on 5. 4. 1985, he served the summons for the hearing 11. 6. 1985 on Mannammal. Sakkubai and the petitioner. He would also say that the petitioner has signed his name'r. Vasu'and received the notice and he has served the notice on the petitioner. He has also made an endorsement in the return filed by him of having served the notice and it is Ex. C-1. During cross-examination, C. W. I would say that he knew the petitioner and could identify him since he is running a tea shop in the court compound. Therefore, it is a case in which a process server who can identify the person to whom notice has to be served, has served the notice on the said person and has made a return of the same to the court. It is also stated by C. W. 1 that all the above three persons to whom he has served the notice, are residing in one and the same house. It is further stated by him that it is not correct to say that the petitioner did not receive the notice after signing it. He would affirm that the signature in Ex. C-1 is the signature of the petitioner. From the evidence of C. W. 1, who is an officer of the Court, who has no motive to say anything false against the petitioner, we can infer that notice has been actually been served on the petitioner, even before the hearing date. We can also infer that notices were served on the other members of the family also. It is no doubt true that subsequently, a publication also has been made in the tamil Newspaper'malai Murasu', when the suit summons could not be served on the petitioner. But, that is not sufficient to hold that the petitioner was not aware of the pendency of the proceedings on the ground that there was only substituted service of the suit summons and no personal service on him. The learned counsel appearing for the petitioner relies upon two decisions of the court to contend that under O. 5, Rule 20 of the Code of Civil procedure where an application to set aside an ex parte decree is made, substituted service under O. 5. Rule 20 shall not be deemed to be due service. The learned counsel appearing for the revision petitioner has picked up only one sentence from the ruling referred by him viz. , in Ramalingamv. M. K. Maheswari, (1984)1 M. L. J. 285. A Division Bench of this Court has held in the above decision as follows: 'it is true that O. 5, Rule 20 (2) of the Code of civil Procedure states that service substituted by order of court shall be as effective as if it had been made on the defendant personally. This is however, now subject to the present Explanation to Art. 123 of the Limitation Act, where an application to set aside an ex parte decree is made substituted service under O. 5, Rule 20 of the Code shall not be deemed to be due, service. At the same time it cannot be said that merely because substituted service was resorted to and effected knowledge on the part of the defendant must always stand ruled out. Even from service by substituted mode knowledge is inferable if the facts and circumstances warrant it.'