SHAKUNTALA BANSAL Vs. SOHAN CHAND GADIA

JUDGEMENT

(1.) THE petitioners/petitioners/defendants have filed this civi revision petition as against the order dated 21. 9. 2004 in I. A. No. 7230 of 2009 in O. S. No. 6068 of 2003 passed by the learned VIII Assistant Judge, City Civil Court, Madras.

(2.) THE trial Court, while passing orders in I. A. No. 7230 of 2009 in O. S. No. 6068 of 2003, has, among other things, observed that the petitioners/defendants should have examined their tenant because of the fact that they are come to know about the suit only through them and in the absence of the tenant being examined, the reason ascribed by the revision petitioners in regard to the delay of 1644 days in filing an application to set aside the exparte decree dated 21. 9. 2004 is not accepted and has dismissed the application for want of bona fides.

(3.) THE learned counsel for the revision petitioners/ defendants contends that the order of the trial Court dated 03. 08. 2009 in dismissing the I. A. No. 7230 of 2009 is contrary to law and against the principle of equity and the trial court has not looked into an important fact that it is the categorical case of the petitioners that the suit summons have not been served on the petitioners/defendants and as a matter of fact, the application under Section 5 of the Limitation Act has been filed only by means of an abundant caution and the petitioners have not been aware of the suit at all till 07. 04. 2009 since they have shifted the residence from Chennai in the year 2006 itself after the demise of S. K. Bansal, the husband of the first revision petitioner and father of the 2nd and 3rd petitioners and it is their tenant, who has been residing at flat No. 8, 2nd Floor, Shanti Sagar Apartments, 92, Vepery High Road, Vepery, chennai 600 007, has received the notice from the X Assistant Judge, City Civil court, Chennai in E. P. No. 2404 of 2008 and only from the tenant the petitioners have come to know about the case and soon contacted the counsel at Chennai and proceeded to file the necessary applications to set aside the exparte decree, within 30 days from the date of knowledge of the said exparte decree and indeed, the recourse will reveal that no suit summons have been served on the defendant and that the respondent/plaintiff has obtained the exparte decree subsequent to the paper publication being effected as per order V Rule 20 of the Civil procedure Code and added further, the issues involved in the suit are contentious one and the revision petitioners should have been given an opportunity to contest the main suit. But these aspects of the matter have not been adverted to and appreciated by the trial Court in proper perspective and therefore, prays for allowing the civil revision petition.