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2013 Supreme(Mad) 2369
High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
Parameswaran
Versus
Sarumathi
C.R.P.(PD) No. 2746 of 2010
Decided On : 11-07-2013
Advocate Appeared:
For the Petitioner:Mrs. Tamizh Selvi, Advocate, M/s. P. Devadass Associates Advocate.
For the Respondent:G. Thyagarajan, Advocate.
Refusal to receive a court notice amounts to effective service, and the party cannot plead ignorance of its contents.
Headnote:
Delay Condonation - Service of Notice - Limitation Act - [Section 5 of the Limitation Act] - [Order 5 Rule 17 CPC] - [N.Balakrishnan Vs. M.Krishnamurthy (1998(2) CTC 533), N.P.Srinivsan Vs. S.Santhalakshmi (2013(3)CTC 220), Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others (2002 (5) SCC 377), Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai (2012 (5) SCC 157)] - The court discussed the service of notice and the delay condonation under Section 5 of the Limitation Act. It emphasized that refusal to receive a court notice amounts to effective service, and the party cannot plead ignorance of its contents. The court also distinguished the present case from previous cases where there was a categorical finding of no service of notice.
Fact of the Case:
The petitioner sought to set aside an ex parte order of eviction, citing delay of 420 days. The court rejected the application under Section 5 of the Limitation Act, leading to the filing of a Civil Revision Petition.
Finding of the Court:
The court found that the petitioner failed to show sufficient cause for non-appearance and delay in filing the set aside petition. It held that the notice was effectively served through affixture and registered post, and the petitioner's delay was not justified.
Issues: Service of notice, delay condonation under Section 5 of the Limitation Act, absence of sufficient cause for non-appearance.
Ratio Decidendi: The refusal to receive a court notice amounts to effective service, and the party cannot plead ignorance of its contents. The delay in filing the set aside petition was not justified, as the notice was effectively served through affixture and registered post.
Final Decision: The Civil Revision Petition was dismissed, and no costs were awarded.
1. This Civil Revision Petition is filed against an order dated 20.07.2010 made in M.P. No.213 of 2010 in R.C.O.P. No. 2197 of 2008 on file of the XIII Small Causes Court, Chennai wherein and whereby the court below has rejected the application filed by the petitioner under Section 5 of the Limitation Act seeking to condone the delay of 420 days to set aside the ex parte order of eviction.
2. The respondent herein as the landlord filed R.C.O.P No. 2197 of 2008 on the file of the Small Causes Court, Chennai seeking for eviction of the petitioner herein on the ground of wilful default and owner's occupation. The learned Rent Controller passed an exparte order of eviction on 22.1.2009, since the petitioner did not appear before the Court on the said day. Consequently, the petitioner filed an application under Section 5 of the Limitation Act on 16.4.2010 seeking to condone the delay of 420 days in filing the petition to set aside the exparte order passed on 22.1.2009. The said application came to be rejected on 20.7.2010. Aggrieved against the same, the present Civil Revision Petition is filed before this Court.
3. Learned counsel appearing for the petitioner submitted that no notice was served on the petitioner/tenant in the R.C.O.P. and in the absence of service of notice, the petitioner is entitled to be heard on merits by setting aside the exparte order. The petitioner filed the application under Section 5 of the Limitation Act immediately after having the knowledge about the said exparte order, at the time of attending the distress proceedings initiated by the respondent in Distress Application No. 6 of 2009 on the file of the Registrar, Small Causes Court Chennai. The learned counsel further submitted that no prejudice would be caused to the other side if proper opportunity is given to the tenant to contest the matter on merits. In support of her submissions, the learned counsel relied on the following decisions.
1. N.Balakrishnan Vs. M.Krishnamurthy (1998(2) CTC 533)
2. N.P.Srinivsan Vs. S.Santhalakshmi (2013(3)CTC 220)
3. Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others (2002 (5) SCC 377)
4. Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai (2012 (5) SCC 157)
4. Per contra, the learned counsel appearing for the respondent/landlord submitted that the delay of 420 days is enormous and not explained by the petitioner with sufficient cause. The Rent Control Court has followed the proper procedure under Order 5 Rule 17 CPC in effecting service of summon on the petitioner/ tenant and when the affixture is also admitted by the petitioner, the petitioner cannot be permitted to say that there was no service of summon. It is his further contention that the notice sent by the Court through registered post was returned with an endorsement 'refused'. Therefore, the Court has taken note of those facts and came to the conclusion that the petitioner has not shown sufficient cause for condoning the delay of 420 days and consequently rejected the application. He also submitted that the decisions relied on by the learned counsel for the petitioner are factually distinguishable as in all those cases the finding of the Court was that there was absence of service of summons to the parties therein. Further, he submitted that the petitioner entered appearance in the Distress proceedings on 14.9.2009 and even thereafter he kept quiet for nearly seven months without filing the application under Section 5 of the Limitation Act. Thus, it shows that there is no bonafide on his part.
5. Heard the learned counsel appearing on either side and perused the materials placed before me and also considered the decisions relied on by the learned counsel appearing for the petitioner.
6. The point for consideration in this case is as to whether the petitioner has shown sufficient cause for his non-appearance on 22.1.2009 before the learned Rent Controller.
7. The undisputed facts of this case are as follows:-The respondent as the land
