The main legal point established in the judgment is that personal service of summons and notices is essential, and that the defendants have the right to defend the case if they have a valid defense to the suit.

The revision petitioners are the plaintiffs in O.S.No.102 of 1997 on the file of the District Munsif, Hosur.

2.The plaintiffs have filed the suit for partition and allotment of 5/12th shares to them. The plaintiffs have also obtained an exparte preliminary decree on 6.8.1997 and the first defendant has filed an application to set aside the exparte preliminary decree and the same was allowed by the trial court by an order dated 11.10.2000 in I.A.No.578 of 1999. Aggrieved by the same, the plaintiffs have filed this revision petition.

3.The respondent-first defendant in his affidavit filed in support of the petition to set aside the exparte preliminary decree has stated that he came to know about the suit only when the advocate-commissioner came to measure the suit properties and the commissioner has informed him that he had to measure and to divide the properties as per the decree passed by the court; that thereafter the first defendant has made enquiries after engaging the advocate and came to know that the exparte preliminary decree was passed on 6.8.1997. It is also stated in the affidavit that he has got the valid defence as the second plaintiff is not the wife of late Sevappa and the first defendant is not at all the son of Sevappa; that the suit properties were gifted to the first defendant by gift deed dated 19.8.1966 executed by his grand father Peddha Nanjappa and therefore, the plaintiffs have no right to seek partition in these properties.

4.The application filed by the first defendant was resisted by the plaintiffs and they have also filed counter wherein it is stated that they have taken summons and notices through court and by post to the defendants on several times and they wantonly refused to receive the summons and notices in P.O.P.No.1 of 1997 in O.S.No.102 of 1997 and also in I.A.No.1166 of 1997. Even prior to the visit of the suit properties by the advocate-commissioner, he had sent notice through certificate of posting to the defendants and the said notices were served to them and the defendants had full of knowledge about the entire proceedings, even prior to the visit of the advocate-commissioner and therefore, the petition filed by the first defendant to set aside the exparte preliminary decree is not sustainable. The trial court has examined the matter at a length. It appears that on all stages, that is, in P.O.P. No.1 of 1997, in O.S.No.102 of 1997 and also in I.A.No.1166 of 1997, the summons and notices sent through court were said to have been refused by the defendants and they were affixed on the outer door of the house and therefore, they were set exparte. But the defendants have contended that no such notices were received by them and the service of the summons to the witnesses were sent to one and the same persons and those persons were procured by the plaintiffs to obtain such an endorsement. But however, the trial court has found that the said statement of the defendants is not correct as Gopalan and Raman were the witnesses on one occasion and Gopalan and Munusamy were the witnesses on another occasion. It also appears that the date of hearing was published in a newspaper. Despite this, the defendants have not chosen to appear. The trial court has observed that on all occasions, the endorsement of service was that the defendants refused to accept to receive the summons and notices and they have set exparte and though the service by affixure and publication are sufficient, they are not good and valid equal to the personal service of summons and notices to the parties concerned. In the said view of the matter and also in the interest of justice, the trial court has allowed the petition on costs.

5.Learned advocate for the revision petitioner has submitted that the summons and notices to the defendants have been duly served as contemplated under Order 5 Rules 11,12 and 17 CPC., and that therefore, the service is a valid service and the defendants cannot pretend as if they have not received