ORDER
Prabha Sridevan, J.
1. This Revision has been filed against the order of dismissing the application for condonation of delay of 753 days in filing the petition to set aside the ex parte decree.
2. The suit was filed by the first respondent against 7 defendants for declaration that the suit property belongs to him absolutely and for other reliefs. The petitioners are defendants 3 and 4. The first respondent/plaintiff is the son of A.M.M.S. Ganesa Nadar and the 2nd and 3rd respondents are his Brothers. The 4th and 5th respondents are son of the 2nd respondent, and 6th respondent is the son of the 3rd respondent.
3. In order to obtain a declaration that he is in absolute possession and enjoyment of the property, the suit was initiated. An ex parte decree was passed on 16.3.2001. The petitioners filed an application under Section 5 of Limitation Act for condoning the delay of 753 days in filing the application to set aside the ex parte decree. The first respondent contested the application along with the respondents 2 to 6. The Court below came to the conclusion that the petitioners had not given sufficient cause for the delay. Before the Court below documents have been marked and witnesses were also examined by the petitioners.
4. The learned Senior Counsel appearing for the petitioners would submit that though the petitioners filed an application under Section 5 of Limitation Act, since they had demonstrated clearly that summons were not duly served, then the Court below ought to have condoned the delay. The learned Senior Counsel referred to the evidence of P.W.1 and P.W.2, namely, the second petitioner and the process server, respectively to show that summons were not duly served on the defendants.
5. The learned Senior Counsel would refer to the decision rendered in Sushil Kumar Sabharwal v. Gurpreet Singh and Ors., A.I.R. 2002 SC 2370, wherein it was held that when there was no service of summons, it could not be said that the defendant had the knowledge of ex parte decree and that knowledge of pendency of suit is not the same as knowledge of date of hearing, as per Order 9, Rule 13, C.P.C.
6. The counsel for the first respondent would submit that even if the Court were to accept that there was no service of summons it is clear from the evidence that they had knowledge of the decree even in January 2003 and yet they did not file an application in June 2003 and therefore, the Court below was right in concluding that sufficient cause for the delay was not made out.
7. The learned counsel relied on several decisions in support of his case. The learned counsel also pointed out that in the affidavit filed in support of application a specific statement was made that ex parte decree has been got due to fraud but fraud has not been established. The purchasers from the first respondent have filed the C.M.P.No. 2827 of 2004 to implead themselves. This application was also listed along with the revision and the counsel was heard. The learned counsel for the impleading petitioners would submit that the petitioner’s property and the respondent’s property are adjacent to each other and therefore the petitioners cannot be heard to say that they had no knowledge.
8. According to the learned counsel, under Article 123 of the limitation Act, the petition should be filed within 30 days from the date of the decree or where the summons notice was not duly served on the applicant, from the date of knowledge of the decree. Having stood by watching a big construction come up next to their property, it is difficult to accept their case that they have no knowledge.
9. The learned counsel for the impleading petitioners referred to several decisions. Since the counsel for the respondents submitted that the original records should be summoned, records were also called for perusal. The endorsement is to the effect that the suit summons were served duly on 4.5.2000 and that since the defendants 1, 3, 4, 5 and 6 had refused, the summons was affixed.
10. The long cause title in the suit, shows that the 1st defendant lives in Ganesh Nagar, Tuticorin, and 2nd defendant lives in Mangalagiri, Turicorin, and 3rd defendant lives in Miller Puram, Turicorin, and 4th defendant lives in Brahmin Colony, Tuticorin, and 5th and 6th defendant live in the same place of the 1st defendant and 7th defendant lives in same the place of the 2nd defendant.
11. The suit property is Door. No. 126 A/2 Brahmin colony, while the residence of the 4th defendant/second petitioner is. 126/A-1 Brahmin colony. The evidence of P.W.2 that he went to the house of the persons mentioned in the summons and they refused to receive it.
He has stated that he affixed the notice on the house of the defendant who lives in Miller Puram and defendant who lives in Brahmin colony.
He has stated that since the defendants were in the same place, he obtained attestation of the witness in the same place.
According to him, the defendants who refused to receive the summons are in the same place.
He has stated that the witnesses are neighbours.
During the cross examination it has been elicited from him that he affixed the summons in the address found in the summons.
Subsequently the said notice was affixed in the address of Brahmin colony.
According to him, the witnesses did not come with him to Miller Puram and Brahmin colony. But he obtained their signature, after the affixiture at Ganesh Nagar.
P.W.1 the 4th defendant is the 2nd petitioner, also gave evidence. He has stated that when the suit was filed the first petitioner was in Miller Puram and he has denied that, he refused the summons. He has stated that he filed the petition on 12.5.2003 after knowing about the decree
14. Now let us look at the various decisions relied on by the learned counsel.
a) In Indian Oil Corporation Ltd., Madras v. Mrs. Sakuntala Ganapathy Rao, , the Division Bench of this Court held that while considering whether there was sufficient cause, the Court should also take into account the legal right that had accrued in favour of the other side.
b) In Reliance Industries, rep. by Reliance Consultancy Services Limited v. M. Rajumari, 2001 (3) CTC 321, the trial Court rejected the application filed under Section 5 of the Limitation. Act on the ground that the defendant failed to give even a plausible explanation for the delay.
c) In Binod Bihari Singh v. Union of India, , the award was sent to the party by post and evidence of posting of award was produced. The Court therefore, presumed that the registered cover had reached the applicant within time and in fact held that an applicant who had taken a false stand on the question of receipt of the signed copy of the award to get rid of the bar of alteration should not be encouraged to get any premium on the falsehood on his part.
d) In Ramnath Rao @ Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., 2002 (1) CTC 769, the Supreme Court held that the expressions sufficient cause should receive liberal construction, so as to advance justice when no negligence, inaction or want of bona fide is imputable to the party and that pedantic and hypertechnical view should be taken and the explanation for the delay should not be rejected when, the stakes are high or where arguable points of facts and law are involved.
e) In Sankaralingam and Anr. v. V. Rahuraman, 2002 (3) CTC 13, this Court held that while dealing with the petition filed under Section 5, the Court should examine four aspects namely:
(a) Whether petitioner has satisfactorily proved sufficient cause for delay;
(b) Whether petitioner is guilty of negligence or inaction or want of bona fide.
(c) Whether valuable right that he accrued to other party is likely to be defeated by condonation of delay, and
d) Whether petitioner has arguable points on facts and law.
f) In N.R. Krishnamoorthy v. N.R. Thulasiram and three Ors., 2001 (2) L.W. 98, this Court held that when no proper service was made even though the petitioner was available and when no efforts were taken to serve in person and service was made by affixture’, it cannot be construed as proper service of summons and in that case this Court accepted the explanation that the petitioner came to know about the final decree proceedings only when the EP was filed and immediately he filed the application under Section 5 of the Limitation Act.
g) In K. Thirumurthy and Anr. v. Muthammal and Ors., 2003 (3) MLJ 369, this Court held that even if “sufficient cause’ is not shown, the delay can be condoned to give opportunity to the defence to contest the case.
h) In Vedabai alias Vaijayantabai Baburao Patil v. Shantaram Babrao patil and Ors., , the Supreme Court held that the conduct of the appellant, depicts anxiety to minimise delay rather than falsity of her case or malafides and therefore, condoned the delay.
i) In M.K. Prasad v. P. Arumuga, , the Supreme Court condoned the delay accepting the case of the litigant that the counsel had left without informing him and he came to know about the passing of the decree only on receipt of notice of execution proceedings.
j) In E.M.K. Nawabjan v. Krishnan Chettiar and Ors., 1977 (1) MLJ 382, it was held that so long as there is a statutory provision which contemplates service by affixture when the party refuses to receive the summons, it cannot be said that, there has been no proper service.
k) In Zaibunisa Bivi v. The Madras State Wakf Board, Madras represented by its Secretary, 1982 (1) MLJ 301, it was held that affixture of service at the place of residence of the defendant is sufficient for service.
l) In Lakshmi Ammal and Ors. v. The Southern India Central Benefit (Private) Ltd., represented by its Manager, 8. Sarasvathi Street Tirunelveli Town and Anr., 1986 (1) MLJ 155, this Court, laid down the procedure to be followed while serving the summons on the defendants and accepted that service was properly effected, since the serving officer had been examined and the return had been duly shown in accordance with Order 5, Rule 7.
m) In A.C. Ananthaswamy and Ors. v. Boralah (Dad) By LRs. , the Supreme Court held that where the only fraud alleged is non service of summons, then such a suit to set aside the decree on the alleged ground of fraud is not made out.
15. Therefore, it is clear from the decisions referred to above that the question whether sufficient cause has been made out and whether delay should be condoned will depend on the facts of the case. There cannot be a hard and fast rule for every case. In the present case, the process server has deposed that he had affixed the summons on the residence. This has not been rebutted. The petitioners’ claim is that the summons was not served on them, nor had they refused to receive the summons. According to them, the very fact that the process server has given evidence that all the defendants were residing in the same place would clearly establish the fact that he made no attempt for serving them at their place of residence. Even assuming that the defendant was not served with the summons. The petitioners do not say in their affidavit exactly when they came to know about the passing of the decree. Assuming, without accepting that there was no service of summons they would still have to come before the Court with a specific date on which they came to know about the decree. The affidavit filed in support of their application is devoid of details. The affidavit is extracted:
“The defendants 3 and 4 come to learn that serious fraud has been committed by the plaintiff in serving the summons at Ganesh Nagar, Tuticorin as if the defendants 3 and 4 reside there. The defendants 3 and 4 reside at Brahmin Colony and at Ganesh Nagar as per the plaint. The boundary recitals in the plaint is different from the boundary recitals given in the decree. This affidavit shall be read as part of the written statement filed. By one single stroke of one summons with no post and Court summon to follow the defendants 3 and 4 are set ex parte as if they have refused to receive the summons and hence affixture made and based upon the affidavit of one Christopher who is from the Court Nazarata the defendants 3 and 4 are given civil death. The attestors to the summons are one Velayutham Nadar whose address is not given nor that of the other attestor Arunachalam is given but set to live at Ganesh Nagar where the 1st defendant resides and not defendants 3 and A. It is true in Ganesh Nagar the 1st defendant and defendants 5 and 6 reside. A make believe drama is done by the appearance of an advocate for defendants 2 and 7 and later on 2 and 7 defendants melt away without filing written statement and are set ex parte. The plaintiff has accelerated the suit by filing applications to get an ex parte decree behind the back of defendants 3 and 4. The petitioners 1 and 2 want to set aside the ex parte decree on the ground that no summons have been served on them and by précising fraud an ex parte decree has been obtained. Further, Court which has passed the decree has no pecuniary jurisdiction and hence the decree has to be set aside passed on 16.3.2001. By way of abundant caution, Section 5 of the Limitation Act petition is filed as to set aside the ex parte decree passed on 16.3.2001. The hastiness to get an ex parte decree is evident by the fact that an application in A.No. 326 of 2001 is filed to advance the case from 12.4.2001 to 12.3.2001 and the same is accepted without demmur by the advocate who has filed the vakalath. The Court has ordered the office to number the suit provided it is otherwise in order. The Court has dealt with only the provisions of the Court Fees Act and not other matters. I am filing this affidavit on behalf of my brother the III Defendant.
The petitioners also admit that they were given a copy of the plaint by their advocate. The date on which this copy was received is not specified. They admit that they knew about the passing of the decree in January 2003. But no explanation is given as to why they waited till June 2003 to file the application. They do not deny that a huge construction was put up right in front of their eyes by the purchasers from the plaintiff/respondent and yet they waited, till June 2003 to file this petition. The provisions of Order 9, Rule 13 itself provides that no Court shall set aside a decree passed ex parte merely because of the irregularity in the service of summons, if it be satisfied that the defendant had notice of the date of hearing in sufficient time to appear and answer the claim.
16. It was contended on behalf of the petitioners that since the sent summons was not served, there is actually no delay and it is only by way of abundant caution the application under Section 5 of the Limitation was filed. To accept their case there is no delay, they should inform the Court when they had knowledge and how swiftly they acted thereafter. The petitioners are inexplicably reluctant to specify the date of knowledge. The petitioners have relied on Sushil Kumar Sabharwal v. Gurpreet Singh and Ors., AIR 2002 SC 2370, wherein it was held that the knowledge of the suit cannot be equated to knowledge of date of hearing. But here we are concerned with the explanation for the delay in filing the application to set aside the ex parte decree. If the petitioners were not served with the summons, they are not bound to explain the delay from the date of decree, but they would still have to explain the reasons for the delay from the date on which they had knowledge of the decree. So the above decision cannot come to their aid.
17. For all these reasons, I am of the opinion that the petitioners have not made out sufficient cause. Their application lacks bona fides and therefore, the revision is dismissed. C.M.Ps. and V.C.M.Ps. closed. No Costs.