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Zaibunissa Bivi Vs. the Madras State Wakf Board Represented by Its Secretary - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1982)1MLJ301
AppellantZaibunissa Bivi
RespondentThe Madras State Wakf Board Represented by Its Secretary
Excerpt:
- - number under which the third defendant came to be impleaded as a party, the learned counsel for the pstitioner contended that there could have been no service of summons on the third defendant, and the application filed within thirty days from the date of knowledge is well within time......and 9 months, for setting aside the exparte decree. this petitioner's contention was that the suit summons was not served on her and the application setting aside the ex pane decree was filed within 30 days from the date of knowledge of the decree. the trial court held that there was service of suit summons on the petitioner, and as the application to set aside the ex parte decree was not filed within thirty days from the date of decree, it refused to set aside the ex parte decree against which the present civil revision petition is filed.2. the petitioner was impleaded as the third defendant in the suit as per the order passed in ia. no. 342 of 1968 on 15th february, 1968, in i.a. 659 of 1968, dated 20th february, 1968, the schedule of the suit property came to be amended. in the.....
Judgment:
ORDER

P. Venugopal, J.

1. The third defendant in the suit is the civil revision petitioner before this Court, and the plaintiff is the respondent. An exparte decree was passed against the petitioner on 25th May, I968. She filed an application A. No. 1347 of 1977 on 19th July, 1977 after a delay of 8 years and 9 months, for setting aside the exparte decree. This petitioner's contention was that the suit summons was not served on her and the application setting aside the ex pane decree was filed within 30 days from the date of knowledge of the decree. The trial Court held that there was service of suit summons on the petitioner, and as the application to set aside the ex parte decree was not filed within thirty days from the date of decree, it refused to set aside the ex parte decree against which the present civil revision petition is filed.

2. The petitioner was impleaded as the third defendant in the suit as per the order passed in IA. No. 342 of 1968 on 15th February, 1968, In I.A. 659 of 1968, dated 20th February, 1968, the schedule of the suit property came to be amended. In the plaint it is stated that the third defendant came to be impleaded as per the orders passed in I.A. 659 of 1968. Relying on the discrepancy in the I.A. number under which the third defendant came to be impleaded as a party, the learned Counsel for the pstitioner contended that there could have been no service of summons on the third defendant, and the application filed within thirty days from the date of knowledge is well within time.

3. On account of the mistake or discrepancy in noting the I. A number under which the petitioner came to be impleaded as a party in the Suit, it cannot be said that there was no service of suit summons on the petitioner. In I.A. No. 1342 of 1977 it is stated that the petitioner was duly served with summons by affixing the copies of the same at her residence. Due to efflux of time the material records showing the mode of service on the petitioner ha ve been destroyed. Under Order 5, Rule 17, Civil Procedure Code, affixture of notice at the residence of defendant can be resorted to:

2. When the defendant refuses to accept service; and

(b) When the defendant is absent from her residence and there is no likelihood of her being foundat the residence within a reasonable time and there is no agent empowered to accept service of summons on her behalf or any other person on whom service can be made.

4. Service of summons by affixture at the place of residence is one of the recognised modes of service summons on a defendant. If the Court records show that there has been service of summons on the petitioner by affixture at the residence, it must be presumed that all the requirements necessary for service by affixture existed in the instant case and there was compliance of all the statutory requirements for effecting such service on the petitioner, and thereafter it is for the petitioner to rebut the presumption. The petitioner has not placed any material to rebut the presumption. If really there was no service of suit summons on the petitioner, she need not have filed I.A. No. 1342 of 1977 for condo. nation of delay of 8 years and 9 months under Section 5 of the Limitation Act. She could have straightaway filed an application contending that there was no service of suit summons on her and the application to set aside the decree has been filed within thirty days from the date of knowledge of the decree. In as much as the petitioner has chosen to file an application for condonation of delay under Section 5 of the Limitation Act instead of straight away pleading that there was no service of the suit summons her, the present plea put forward by the petitioner that there was no service of suit summons or her, cannot be accepted. The Court below was fully justified in dismissing the application of the petitioner for setting aside the ex parte decree passed against her.

5. In the result, the civil revision petition stands dismissed. Parties to bear there own Costs.


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