The judgment emphasizes the need for substantial justice over technical considerations, warranting a full-length trial to investigate rival claims and the theory of probability.

JUDGMENT:

1. This Civil Miscellaneous Appeal is preferred impugning order dated 02.09.2009 dismissing I.A. No.1884 of 2008, filed by the petitioner under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree dated 30.09.2005 in O.S. No.359 of 2005 on the file of the Principal Senior Civil Judge, Guntur (henceforth trial Court).

2. Appellant No.1 was the defendant and the respondent was the plaintiff before the trial Court in O.S. No.359 of 2005. The suit was decreed ex-parte in favour of the plaintiff and subsequently, I.A. No.1884 of 2008 was filed by the defendant seeking to set aside the ex-parte decree.

3. For the sake of convenience, the parties hereinafter will be referred to as they arrayed before the trial Court. During pendency of the appeal, as the sole Appellant died, Appellant Nos.2 to 4, who are sons of the 1st Appellant came on record as his legal representatives.

4. Case of the Appellants/Petitioner/Defendant:

4.1. In the affidavit filed in support of the petition filed before the trial Court, it was averred by the Appellant No.1/defendant that, he is the defendant in the suit filed by his younger brother/plaintiff seeking partition of the suit schedule property, that he never received any summons, till the date the learned Advocate Commissioner visited the suit schedule property on 13.12.2006 for division and he was taken aback to know about the exparte decree. Further, he would submit that he filed his objections to inspection and he also found out that preliminary decree was passed on 30.09.2005 without his knowledge and in the same manner a final decree was also likely to be passed as he was set ex-parte once again on 07.07.2006 in I.A. No.698/2006.

4.2. It is also averred that the defendant possesses all the necessary documents and plaintiff deliberately suppressed registered gift deed dated 30.09.1967 executed by their mother in favour of defendant. On these submissions, Appellant No.1 sought to set aside the exparte preliminary decree and to provide him a fair opportunity to submit his case.

5. Version of the Respondent/Respondent/Plaintiff Per contra, the plaintiff contended that no valid reason was assigned by the defendant to obtain the relief of setting aside the ex-parte decree and as such the I.A. was filed with an intention to drag on the suit proceedings, suppressing the material facts. He would further submit that the report of the process server is very clear to the effect that the defendant refused to receive the summons in the presence of the mediator and therefore the said summons got affixed to the door and even in final decree petition also, the Process Server endorsed that the defendant refused to receive the summons. Further the plaintiff contends that the set aside petition since is filed without filing delay condonation petition, it is not maintainable and as such he sought for its dismissal.

6. Finding of the trial court

In the light of the pleadings and rival submissions of the parties, upon hearing, the learned trial Judge vide the impugned order dated 02.09.2009 dismissed the petition with costs as

(i) the petitioner failed to examine the process server to prove that the summons were not served on him,

(ii) no application is filed under Section 5 of Limitation Act to condone the delay and

(iii) refusal to receive the summons is sufficient service as per Order 5 Rule 17 of C.P.C.

7. Grounds of Appeal

Feeling aggrieved and dissatisfied with the impugned order, the petitioner carried the matter before this Court in this Appeal on the grounds that the learned trial Judge failed to observe that the petition was filed on bonafide grounds of non-service of summons in suit and that the ex-parte decree passed behind his back is on fraud, that whenever technical considerations and substantial justice are pitted against each other, the latter should be given weight as for procedural irregularity, substantial rights cannot be ignored and that if the petition is allowed, no prejudice would be caused to