T INDIRA Vs. R DEEPA

JUDGEMENT

(1.) CHALLENGE is made to an order of the learned Subordinate Judge, Erode, dismissing an application in I.A.No.43/2006 seeking to condone the delay of 557 days in making an application to set aside an ex-parte decree passed in O.S.No.326/2003. 2.The Court heard the learned Counsel on either side. 3.The respondent/plaintiff filed a suit in O.S.No.326/2003 against the revision petitioner and her children alleging that the husband of the petitioner herein had executed a promissory note for a sum of Rs.1.00 lakh; but, it was not repaid, and thus, the defendants were liable to pay. After it was taken on file, due to the non-appearance, the defendants were set ex-parte, and an ex-parte decree came to be passed on 8.6.2004. The petitioner along with the minor children filed an application to set aside the ex-parte decree and along with that, they filed the instant application in I.A.No.43/2006 to condone the delay of 557 days which occasioned in making the other application. On contest, the application was dismissed. Hence, this revision before this Court. 4.The learned Counsel appearing for the revision petitioner would submit that no one of the defendants executed the promissory note; that it was the case of the respondent that the husband of the petitioner had executed the promissory note, and thus, the suit was laid; that there was no direct service or attempt of service on any one of the defendants at any point of time; that what was done was only substituted service, according to the plaintiff; that the first defendant after the death of her husband, came over to Madurai from the native place Erode, seeking job on compassionate ground in the Railways where her husband was working; that even the substituted service was not taken to the address where she was living at Madurai; that from the lower Court's proceedings, it could be seen that it was taken to Tirunelveli address where her mother's house was situated; that she came to know about the proceedings only after the execution proceedings was initiated in E.P.No.207/2005; that immediately, she filed the instant application to condone the delay in making an application to set aside the ex-parte decree, and thus, the delay was neither wanton nor deliberate; that she had no knowledge about the proceedings, and under the circumstances, the lower Court should have allowed the application, but dismissed, and hence, the order of the lower Court has got to be set aside. 5.The learned Counsel for the respondent would submit that in the instant case, it is true that there was a wilful refusal on the part of the first defendant to receive the summons; that twice it was ordered; but, she refused; that thereafter, substituted service was ordered by affixture and also by publication; that even then, she did not appear; that it would be indicative of the carelessness on her part to Court proceedings, and hence, no indulgence could be shown; that the lower Court considering the same, was not inclined to condone such a huge delay of 557 days, and hence, the order of the lower Court has got to be sustained. 6.After careful consideration of the rival submissions made, this Court is of the considered opinion that the order of the lower Court has got to be made undone by upsetting the order. It is not in controversy that the suit in O.S.No.326/2003 was laid by the respondent/plaintiff against the defendants. It is also not in controversy that no one of the defendants executed the promissory note; but, the case of the plaintiff was that the first defendant's husband had executed the promissory note. From the impugned order, it could be seen that no direct service was made at any point of time. It could also be seen from the available materials that the Court is situated at Erode, and the substituted service by affixture and publication was made in Tirunelveli. It is also pertinent to point out that Tirunelveli is not the place of any one of the defendants; but, the mother's house of the first defendant was situated at Tirunelveli. From the materials produced by the petitioner, it could be seen that she was staying during the relevant period at Madurai seeking job on compassionate ground on the death of her husband, in the Railways. Even the substituted service, though it has been done, would be of no effect. In a case like this, where an opportunity has to be given to the defendants to put forth their defence and when it is also further noticed that no direct service was made and apart from that, when the substituted service was insufficient in the opinion of the Court, it cannot be termed as service in the eye of law. 7.It is true that there was a delay of 557 days. The Court must take a liberal view in view of the reasons adduced above. According to the revision petitioner, she came to know about the proceedings only after the laying of the E.P., and hence, she cannot be imputed with the knowledge of the proceedings earlier in point of time. Taking the liberal view this Court is of the considered opinion that the fact that the service is not sufficient and she came to know about the same only from the execution proceedings, would be sufficient cause to condone the delay of 557 days. Interest of justice in the above circumstances, would also require so. Hence, the order of the lower Court has got to be set aside, and the delay of 557 days, though huge, has got to be condoned in view of the reasons adduced above. Accordingly, it is condoned. While condoning the delay, this Court is of the view that cost has got to be ordered. Accordingly, a cost of Rs.2,000/- (Rupees two thousand only) is ordered to be payable by the petitioner directly to the Counsel for the respondent herein within a period of four weeks here from, failing which this revision petition shall stand dismissed. On such compliance, the lower Court is also directed to dispose of the application to set aside the ex-parte decree within a period of four weeks there from on merits and in accordance with law. 8.Accordingly, this civil revision petition is allowed. No costs. Consequently, connected MP is closed.