The main legal point established in the judgment is the importance of advancing substantial justice over procedural law and the application of a liberal approach in considering the condonation of delay.

JUDGMENT

(Prayer: Civil Revision Petition filed under Section 115 of Civil Procedure Code, praying to set aside the order dated 31.07.2013 made in I.A.No.76 of 2013 in O.S.No.60 of 2012, on the file of the Principal District Munsif-cum- Judicial Magistrate, Chengam by allowing this Civil Revision Petition.)

Aggrieved by the dismissal of a petition to condone the delay of 167 days in seeking to set aside the ex-parte decree, the defendant has come up with this revision.

2. Though the respondents are served and their names appear in the cause list. There is no representation for the respondents. Heard the counsel for the petitioner and perused papers.

3. The respondent herein filed a suit for declaration of title and recovery of possession in O.S.No.60 of 2012, on the file of the Principal District Munsif cum Judicial Magistrate, Chengam and an ex parte decree was passed on 16.07.2013. The revision petitioner filed a petition to set aside the ex parte decree along with written statement on 28.01.2013. Since there was a delay of 167 days, in seeking to set aside the ex parte decree, he also filed an application to condone the delay in I.A.No.76 of 2013.

4. In support of the petition to condone the delay, the revision petitioner submitted that the suit summon was not served on him and he never refused the summons. The fact that the respondents obtained ex parte decree came to his knowledge only on service of notice in execution petition. Thereafter, on enquiry, he came to know that an ex parte decree was passed against him on 16.07.2012. Immediately, he had taken steps to set aside the ex parte decree and filed the application to condone delay. It was also averred by the petitioner that he was away from his native place in order to earn livelihood. At the relevant point of time, he was in Kaddappa, Andhra Pradesh and he was not aware of the suit filed by respondents and suit summon was not served on him.

5. The Court below dismissed the application on the ground that the reasons adduced by the revision petitioner for condoning the delay were not acceptable. Further, it was observed by the Trial Court that the suit summons can be served on an adult member of defendant's family under Rule 15 of Order 5 CPC. However, the trial Court in its order has not stated, how the suit summons was served on the defendant, whether personally or an any adult member of his family. In the impugned order, it was not mentioned on whom the suit summon was served.

6. The service of summons on the defendants is dealt with by Rule 10 to 30 of Order 5 of CPC. A conjoint reading of Rules 11, 12 and 15 of Order 5 CPC makes it very clear that the summons shall be served on the defendant personally as far as possible. Where the defendant is absent from his residence at the time when service of summons was sought to be effected and there is no likelihood of his being found at his residence within a reasonable time and he has no agent empowered to accept summons, the service may be effected on any adult member of the family, who is residing with him. In the case on hand, first of all, it was not stated on whom the suit summons was served. Secondly, it was also not mentioned whether it was served on any other competent person to receive summons as there was no likelihood of defendant returning to his residence within reasonable time. Hence, the ingredients of service of summons as enunciated in Rules 11, 12 and 15 are not complied.

7. In the affidavit filed in support of the condone delay petition, the revision petitioner had categorically averred that he was out of his native place and he was not aware of filing of suit against him. He further averred that he came to know of the suit proceedings only when he returned to his native place and served with the notice in execution application. The suit is for declaration of title and recovery of possession and hence substantial rights of the parties are involved.

8. Considering the nature of the relief sought for in the suit