The civil revision petition is directed against the Judgment and Decree, dated 09.04.2009, passed in C.M.A.No.3 of 2005, on the file of the Subordinate Court, Tuticorin, confirming the fair and decreetal orders, dated 22.09.2004, passed in I.A.No.276 of 2004 in O.S.No.78 of 2003, on the file of the District Munsif Court, Srivaikundam.
2. The petitioners are the defendants in O.S.No.78 of 2003. The petitioners had been set ex parte in the abovesaid suit on 16.10.2003 and seeking to set aside the ex parte decree passed against them, the petitioners have come forward with an application under Order IX Rule 13 of the Code of Civil Procedure. The reason projected by the petitioners for setting aside the ex parte decree is that they had not been served with the summons in the suit and accordingly, they are not aware of the suit proceedings and hence, the ex parte decree passed against them, dated 16.10.2003, should be set aside. Further according to the petitioners, they had sold the subject matter to one Arumugam @ Arul and Madhavan on 07.04.2003 and learnt that the http://www.judis.nic.in 3 respondent / plaintiff had preferred a complaint with the Police against Arumugam @ Arul and in the enquiry conducted with reference to the abovesaid complaint, Arumugam @ Arul was informed about the ex parte decree obtained by the respondent / plaintiff by the Police on 11.01.2004 and thereafter, according to the petitioners, Arumugam @ Arul had informed the same to them on 19.01.2004 and only by way of the same, they came to know about the ex parte decree passed against them in the suit on 16.10.2003 and accordingly, had come forward with the application to set aside the ex parte decree passed against them.
3. The abovesaid application of the petitioners had been resisted by the respondent contending that the case projected by the petitioners that they are not aware of the suit is false and the petitioners have been served with the summons in the suit and despite the same, the petitioners had refused to receive the summons sent from the Court deliberately and further, also contended that the petitioners had preferred a caveat petition against the respondents and accordingly, the respondent had also issued due notice to their counsel as regards the institution of the suit and the respondent had sent the summons only to the address given by the petitioners in the caveat petition with the name of their father as Ramasundaram as the petitioners had stated that the name of their father is only Ramasundaram in the caveat http://www.judis.nic.in 4 petition and therefore, the petitioners cannot be allowed to seek for setting aside the ex parte decree passed against them in the suit on the footing that they had not been served with the summons and prayed for the dismissal of the application.
4. Based on the materials placed on record, the Courts below were pleased to dismiss the application preferred by the petitioners. Aggrieved over the same, the present civil revision petition has been levied.
5. The only reason given by the petitioners for setting aside the ex parte decree passed against them, dated 16.10.2003, is that they had not been served with the summons in the suit. Materials placed on record go to show that the petitioners had preferred the caveat petition against the respondent as regards the subject matter. It is further noted that the respondent has sent notice through Court to the petitioners only to the address given by them in the caveat petition and accordingly, the notice has been sent to the petitioners showing their father's name as Ramasundaram as mentioned in the caveat petition. As could be seen from the materials placed on record and as determined by the Courts below, when it is found that the summons sent to the petitioners had been returned by them on the footing that the name of the petitioners' father has been wrongly mentioned in the summons, http://www.judis.nic.in 5 consequently, it is noted that the Court below finding that the petitioners had deliberately refused to receive the summons, set them ex parte. Now, according to the petitioners, in the summons sent to them, the name of the petitioners' father has been mentioned as Ramasundaram instead of Ramachandran. However, as could be seen from the caveat petition marked as Ex.R1, the name of the petitioners' father has been shown only as Ramasundaram and not as Ramachandran and accordingly, when the summons sent to the petitioners had been forwarded to the correct address of the petitioners with proper particulars, despite the same, the conduct of the petitioners in refusing to receive the summons deliberately would only go to show their evil intention of delaying the proceedings one way or the other with a view to cause inconvenience and hardship to the respondent. Thus, as determined by the Courts below, when on the basis of the materials placed on record, the summons taken to the petitioners had been sent to the proper address with correct particulars, including the name of the petitioners' father, the petitioners cannot plead ignorance of the same on the footing that the name of their father has been wrongly mentioned in the summons. When the petitioners themselves have admitted that they had given their father's name as Ramasundaram in the caveat petition and accordingly, when the summons had been taken only to the address given in the caveat petition with other particulars, in such view of the matter, the Courts below are fully justified in http://www.judis.nic.in 6 holding that the petitioners had deliberately and wantonly refused to receive the summons with a view to delay the proceedings one way or the other, accordingly, had come forward with the application to set aside the ex parte decree passed against them falsely, on the footing that they had not been served with the summons. When the petitioners are fully and properly served with the summons by the respondent in the manner known to law, no infirmity could be attributed to the determination of the Courts below that the petitioners had been duly served with the summons.
6. The petitioners had come forward with the application to set aside the ex parte decree passed against them, dated 16.10.2003. However, the petitioners had not come forward with the application in time. With reference to the same, according to the petitioners, they had come to know about the passing of the ex parte decree against them on 16.10.2003 only through Arumugam @ Arul, who according to them, had purchased the suit property from them. It is the case of the petitioners that in the Police enquiry, Arumugam @ Arul has been apprised of the ex parte decree obtained by the respondent / plaintiff in the suit on 11.01.2004 and thereafter, Arumugam @ Arul had informed them about the same on 19.01.2004 and only subsequent thereto, they had come to know about the ex parte decree passed against them, dated 16.10.2003. When the abovesaid reason projected by the http://www.judis.nic.in 7 petitioners is not accepted by the respondent / plaintiff and also challenged, it is for the petitioners to establish the fact that they had come to know about the ex parte decree passed against them only on 19.01.2004 through Arumugam @ Arul. With reference to the same, other than the interested and ipse dixit testimony of the first petitioner examined as P.W.1, no other proof has been placed by the petitioners evidencing the same. Particularly, to substantiate the abovesaid case of the petitioners, the petitioners should have endeavoured to examine the so-called Arumugam @ Arul, who is said to have apprised the factum of passing of the ex parte decree against the petitioners on 19.01.2004. When with reference to the abovesaid case of the petitioners there is no material whatsoever, it is seen that the case projected by the petitioners that they had come to know about the ex parte decree only on 19.01.2004 through Arumugam @ Arul also cannot be accepted and rightly disbelieved by the Courts below. No interference is called for with reference to the findings of the Courts below. It is thus found that though the petitioners are fully aware of the suit proceedings much in advance, they had deliberately refused to receive the summons sent to them and remained ex parte and even thereafter, had not come forward with the requisite application in time to set aside the same and only thereafter, with a false case, had come forward with the application as if they had been made aware of the ex parte decree only on 19.01.2004 by Arumugam @ Arul. However, when the said fact has not been http://www.judis.nic.in 8 established by the petitioners as above discussed, as rightly put forth by the respondent's counsel, the present application is found to be not maintainable without the application to condone the delay in filing the same for setting aside the ex parte decree and on the abovesaid ground also, it is found that the application is liable to the dismissed.
7. In support of his contentions, the petitioners' counsel placed reliance upon the decisions in Abdul Kader vs. G.D.Govindaraj (D) by L.Rs., reported in (2002) 3 M.L.J.33 (S.C.) and Neerja Realtors Pvt. Ltd., vs. Janglu (dead) thr. LR., reported in 2018 (1) CTC 662. Similarly, in support of his contentions, the respondent's counsel placed reliance upon the decision in Parimal vs. Venna @ Bharti, reported in 2011 (2) CTC 329. The principles of law outlined in the abovecited decisions are taken into consideration and followed as applicable to the case at hand.
8. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.