MANGAYARKARASI Vs. PARAMASIVAM

JUDGEMENT

(1.) (This revision petition is filed under Section 115 of CPC against the fair and decretal order dated 21.9.2004 passed in I.A.No.3126 of 2004 in O.S.No. 2274 of 2000 on the file of XV Assistant Judge, City Civil Court, The order passed in I.A.No.3126 of 2004 in O.S.No.2274 of 2000 on the file of XV Assistant Judge, City Civil Court, Chennai is under challenge before this Court in this revision.

(2.) THE reasoning stated in the affidavit to the application to condone the delay of 390 days is that there was no proper service of summon to the defendants in O.S.No.2274 of 2000. In the affidavit, the petitioners have stated that O.S.No.2274 of 2000 was filed under Order 37 CPC and that no Court summon was issued on the defendants but only substituted service was effected in one vernacular daily" Malaimurasu" dated 8.9.2000 and that exparte evidence was taken on 11.12.2000, after setting the defendants exparte on 27.11.2000. But it is brought to the notice of this Court that the plaint was filed not under Order 37 CPC but under Order 7 Rule 1 CPC and that due summons were taken against the defendants and since both the Court as well as the postal summons could not be served on the defendants, the Court has directed the plaintiff to take summons to substitute service and accordingly, the notice was published in one vernacular daily on 8.9.2000 and since the defendants have not appeared on that date, the exparte decree was passed against the defendants on 11.12.2000.

(3.) THE learned counsel appearing for the revision petitioners relying on the following decisions reported in K. Shankar-v- THE Oriental Insurance Company Ltd., rep by its Divisional Manager, Vallal Pachaiyappan Street, Kancheepuram (2005(5) CTC 433), A.Ganesan-v-Dr.S.Mahalingam (2008) 1 MLJ (crl) 255),M/s Concord of India Insurance Co.,Ltd-v-Nirmala Devi(1979 )4 Supreme Court Cases,365),Avvai Home-v-Arulmighu Arunachaleswarar Devesthanam, Thiruvannamalai rep by its Executive Officer/Asst. Commissioner(1998-3 L.W.789), Yanaimal Thottam Trust rep by its Trustee G.N.Chandrabalan-v- B.Lakshmanan(2005(3) CTC 638), State of Nagaland-v- Lipok Ao and others(2005)3 Supreme Court Cases 752) and contended that Limitation Act should be construed liberally to ensure that the substantial justice is done to the parties. Even though the facts in the above said cases differs from the facts of the present case, I am of the view that if there was no sufficient service of summon on the defendants , then there is no necessity for the trial Court to order substituted service in one issue of vernacular daily "Malaimurasu" dated 8.9.2000 for the hearing date 27.11.2000. But even under Ex B1, the defendants have entered appearance in Execution petition in the year 2002 itself but they have not chosen to file a petition to set aside the exparte decree immediately. So for the delay of filing a petition to set aside the exparte decree was not properly explained by the revision petitioners. Since there is no proper service of summons in the suit, I am of the view that an opportunity must be given to the revision petitioners only ,if they pay a sum of Rs.25,000/- to the other side towards cost.