Valid service of summons occurs when a party refuses to accept it, and a defendant can still participate in proceedings even if an ex parte order is not set aside.

ORDER

This revision petition is filed by the petitioner/petitioner/11^th defendant aggrieved by the order, dated 01.12.2023, dismissing I.A.No.279 of 2023 in O.S.No.197 of 2007 on the file of the Court of the Additional Senior Civil Judge, Srikakulam, filed under Order IX, rule 7 and Section 151 CPC to set aside the ex parte order, dated 08.10.2007, passed in the suit.

2. Heard Sri P.Sai Surya Teja, the learned counsel for the petitioner/ 11^th defendant and Ms. T.V. Sridevi, the learned counsel for the respondents/plaintiffs.

3. The case pleaded by the 11^th defendant in the affidavit filed in support of the application, in brief, is this:

The respondents/plaintiffs filed the suit for partition of the plaint schedule property into 20 equal shares and to allot 1/20^th share to the plaintiffs. Actually, a part of the plaint schedule property belongs to Dusa Balaramaswamy Naidu, which is the ancestral property and the remaining extent of property is his self-acquired property. The Will, dated 12.12.1942, clearly shows that part of the schedule property is ancestral property of Dusa Balaramaswamy Naidu. Dusa Balaramaswamy Naidu had no issues and as such, he adopted one Tulasi Rao. Tulasi Rao got three daughters and one son, Savvana Radharamanamma, Koppula Mythiliratnam and the mother of the 11^th defendant, Balabolu Sashibhushanamma and son, by name, Dusa Adinarayana Rao. As the three daughters and the son are no more now, their legal heirs are agitating the partition of the plaint schedule property. According to the 11^th defendant, she is residing in the USA and she has not received any summons, however, the trial Court set her ex parte, vide order, dated 08.10.2007. Hence, this petition.

4. The 1^st respondent/1^st plaintiff filed counter stating as follows:

All the averments are denied. The petitioner/11^th defendant was set ex parte after the registered post sent to her address in the USA was returned with an endorsement ‘refused’. There is no cause of action to file the petition. After the death of the 7^th defendant and thereafter, his wife/12^th defendant, the litigation on behalf of 17^th defendant is being managed by 11^th defendant only. Further, as per the written statement filed along with the petition, she claims to have knowledge of all cases between the parties. The 11^th defendant visited Srikakulam several times to execute documents under exhibits A4 and A9 in the suit. Thus, the petition is in clear violation of the provisions of Order IX, rule 7 CPC and nothing but abuse of process of law. The petition is intended only to drag on the proceedings.

5. After hearing both the parties, the trial Court dismissed the petition holding that the present petition was filed after a long gap of 15 years and the petitioner/defendant failed to show sufficient cause which prevented her to appear in the suit seeking to set aside the ex parte order, dated 08.10.2007.

6. Hence, this revision by the aggrieved 11^th defendant.

7. The learned counsel for the petitioner submitted that the trial Court had not properly appreciated that the suit summon was actually not served on the petitioner and merely by relying on the fact that the summon sent to the revision petitioner was returned as ‘refused’, the impugned order was passed. He further stated that even if the ex parte order against the petitioner is set aside, no prejudice would be caused to the other parties as the suit is still pending and the evidence of the defendants is being recorded.

8. On the other hand, the learned counsel for the respondents/ plaintiffs submitted that the record clearly shows that the summon sent to the petitioner had been actually refused by the party and the cover with such an endorsement had been received by the Court and therefore, there is no need to criticize the observation of the trial Court. He further stated that when a party refuses to receive the notice/ summon, it is deemed to be valid service. He further stated that D17 is the son of the petitioner/D11 and he i