The costs incurred for serving summons in a foreign country should be recovered as suit costs and the condition for setting aside an exparte order should not be onerous.

1. This revision has been filed against the order passed in I.A.No.3 of 2010 in O.S.No.770 of 2008 by the lower Court, an application to set aside the exparte order passed against the petitioner.

2. Heard Mr.K.Kalyanasundaram, learned counsel for the petitioner and Mr.N.Manoharan, learned counsel for the respondent.

3. The learned counsel for the petitioner would submit in his argument that the petitioner was arrayed as third defendant in the suit filed by the respondent/plaintiff in a suit for partition and separate possession of the suit properties and no notice was served upon him since he was living in Australia during the filing of the said suit and when he came over India, he could find that the suit was filed against him and was set exparte without even the notice was served upon him. He would further submit that the lower Court had come to a conclusion of ordering to set aside the exparte order, but, it had levied a huge cost of Rs.20,000/- to be paid as the cost of the service of summons through publication in Australia and the petitioner is not responsible for such a huge cost and therefore, the condition imposed by the lower Court should have been cancelled as onerous and the petitioner may be permitted to participate in the trial. He would therefore, request the Court to set aside the order passed by the lower Court and to pass suitable orders.

4. The learned counsel for the respondent would submit in his arguments that the lower Court was right in imposing the condition of payment of a sum of Rs.20,000/-towards the charges incurred for serving summons through publication due to the absence of the petitioner from India. He would further submit in his argument that after the passing of the order by the lower Court, the respondent approached this Court, for expeditious disposal of the said case, which was adjourned by the lower Court endlessly and sought for a direction for expeditious disposal and the same was ordered by this Court in C.R.P.(PD).No.3498 of 2010 and accordingly, the lower Court had passed an exparte decree since no other defendants contested the suit. He would further submit that the remedy available now for the petitioner is to set aside the exparte decree and not in setting aside the exparte order. Therefore, he would request the Court to dismiss the revision petition.

5. I have given my anxious thoughts to the arguments advanced on either side. The facts and circumstances of the case would go to show that in pursuance of the exparte order passed against the petitioner as well as the other defendants, the exparte decree has been passed after recording evidence. However, the said order of the lower Court was passed when the order passed in the application to set aside the exparte order has been questioned in this revision. However, the said order passed by the lower Court was in pursuance of the direction of this Court, for expeditious disposal. Whatever the order may be, it is subject to the order to be passed in the revision preferred by the petitioner.

6. The point which has to be decided in this revision is as to whether the condition imposed by the lower Court is onerous or not. The petitioner/3rd defendant is working in Australia for his livelihood and hence, his absence from India is not wilful. No doubt it is true that the respondent had incurred expenditure for effecting publication for the defendants in foreign countries. The respondent/plaintiff could have recovered such costs by the way of including them in the suit cost to be added or taxed in the decree, in the event the suit ends in favour of the plaintiff. It is not the fault of the petitioner to reside or having a residence outside India. It is the duty of the plaintiff to effect service against the petitioner/3rd defendant, so as to make him participate in the suit. Now, the petitioner, after knowing the pendency of the suit, on his arrival to India had applied for setting aside the exparte order. Therefore, the condi