Opportunity to prove the case regarding the service of summon and condonation of delay under the Limitation Act.

Heard the learned counsel appearing for the revision petitioner as well as the respondent. The application I.A.No.207 of 2007 in O.S.No.125 of 2005 filed under Section 5 of the Limitation Act to condone the delay of 361 days in filing a petition to set aside the exparte decree dated 20.8.2006 in O.S.No.125 of 2005, was dismissed, which necessitated the petitioner in I.A.No.207 of 2007 to prefer this revision.

2.The suit O.S.No.125 of 2005 was filed by the plaintiff/respondent herein for specific performance of a contract entered into between the plaintiff and the defendant dated 20.2.2005. According to the petitioner, he came to know about the exparte decree only through his neighbours and after that he met his counsel, who advised him to file a petition to set aside the exparte decree and by that time there was a delay of 361 days in preferring the petition to set aside the exparte decree.

3.The learned counsel for the revision petitioner would contend that there was no proper service of summon on the defendant in O.S.No.125 of 2005. Along with the typed set of papers the learned counsel has produced a certified copy of the summon said to have been served on the defendant. A perusal of the endorsement in the returned summon (certified copy), will go to show that since the defendant has refused to receive the same it was served by way of affixture on the front door of the house of the defendant. The learned counsel for the revision petitioner would point out that no independent witnesss signature was obtained for the service of summon by way of affixture and that only the plaintiff has signed as a witness for the service by affixture and the process-server, who had served the summon was in hand glove with the plaintiff in making a false endorsement as to the effect that the summon has been served by way of affixture, and that is why the process-server has not obtained the signature of a third person as a witness for the service of summon.

4.Under such circumstances, I am of the view that an opportunity must be given to the revision petitioner to prove his case. Whether the service of summon was effected properly or not is a matter to be decided in the petition to set aside the exparte decree.

5.The learned counsel for the respondent would contend that there are two EPs viz. REP.No.303 of 2005 & REP.No.76 of 2007 pending against the revision petitioner. The pendency of two other EPs against the revision petitioner is not a ground to dismiss this Civil Revision Petition. The point to be decided in this Civil Revision Petition is whether there is any substantial ground to allow the section 5 application.

6.In fine, the Civil Revision Petition is allowed and the order passed in I.A.No.207 of 2007 in O.S.No.125 of 2005 on the file of the learned Principal Sub-Judge, Salem, is set aside, thereby the delay of 361 days (subsequently corrected as 356 days) is condoned. The learned trial Judge is directed to number the petition filed to set aside the exparte decree and dispose of the same on merits after giving opportunity to both sides to let in evidence, within a period of one month from the date of receipt of copy of this order. No costs. Connected Miscellaneous Petition is closed.