Proper explanation for delay, validity of service of summons, and challenging court's jurisdiction

The order passed in I.A.No.2093 of 2007 in O.S.No.355 of 2003 on the file of the Principal District Munsif, Viruthachalam, is under challenge before this Court. The revision petitioner, who is the defendant in O.S.No.355 of 2003, had filed the said application under Section 5 of the Limitation Act to condone the delay of 970 days in preferring an application to set aside the exparte decree.

2. The reasoning stated in the affidavit to the application in I.A.No.2093 of 2007 is that the defendant / revision petitioner herein was not residing in the address furnished in the plaint and that there was no service of summons in the suit to him and only from the notice received by him in the execution proceedings he came to know about the exparte decree passed against him in O.S.No.355 of 2003 on 012. 2003 itself. The entire case records from the trial Court were called for and perused. The return summons in the suit in O.S.No.355 of 2003 will go to show that the summons have been served on the defendant on 110. 2003 itself.

3. The learned counsel for the revision petitioner during the course of his arguments would state that the signature in the served copy of the summons does not belong to the defendant, but it is a forged one. Even a comparison of the signature of the defendant contained in the served copy of the summons with that of the signature contained in Ex.A.1, a postal acknowledgment, will also go to show that both the signatures tally with each other. The revision petitioner has not taken any steps to refer the disputed signature with that of the admitted signature to an expert before the trial Court. Under such circumstances, the contention of the learned counsel appearing for the revision petitioner that the signature contained in the served copy of the summons does not belong to the defendant holds no water.

4. Relying on 2008(1) CTC 239 (Doss and another Vs. Vamanan and another), the learned counsel for the revision petitioner would contend that to establish that there was due service of summons on the defendant the process server was not examined by the Court. At this point it is pertinent to note that the revision petitioner has not taken any steps before the trial Court to examined the process server, who had returned the served summons for the defendant to prove that there was no valid service of summons on the defendant.

5. The dictum in 2000(8) SCC 491 (Praveen Kumar and others Vs. Suresh Chand and others), relied on by the learned counsel for the revision petitioner, also is of no use to the revision petitioner because in the said case before the trial Court it was contended by the defendant therein that there was no proper service of summons in the suit. In support of the said contention, the petitioner therein had examined the process server to

show that he had played fraud by making fake signatures of the appellant. The trial Court relying upon the opinion of the handwriting expert held that the process was not duly served on the appellant. But on appeal, the High Court held that the findings of the learned Trial Judge is erroneous forgetting for a moment while exercising the revisional powers, the High Court has no jurisdiction to interfere with the findings on the facts recorded by the trial Court. The relevant observation of the Honourable Apex Court in the said case runs as follows:-

"Having heard learned counsel for the parties, we find that on the question whether there was service on the appellants or not, the High Court fell into error. When the trial Court after taking into consideration the evidence on the record including the opinion of the handwriting expert came to the conclusion that there was no service and allowed the application, then the High Court could not under its revisional power have interfered if the trial Court committed any jurisdiction error, or its decision would have resulted in any manifest injustice. The trial Court not having committed any such error the High Co