Section 5 of the Limitation Act, 1963 for condonation of delay of 2500 days in filing the petition to set aside the ex parte decree. - When a person pleads that summons were not served, the burden is on the opposite party to prove that the summons were served. When the petitioner has taken the specific plea that summons were not served, the lower Court ought to have perused the record and rendered a finding based on the acknowledgment of the suit summons. The lower Court cannot be solely guided by the docket proceedings without verifying the record. Moreover, by placing the burden on the petitioner to prove that suit summons were not served, it has committed a serious illegality. For the above-mentioned reasons, the order of the Court below which borders on perversity cannot be sustained, and the same is accordingly set aside. The case is remitted to the lower Court for disposing of I.A.No.733 of 2004 afresh by verifying the record relating to service of summons by holding a fresh enquiry in the light of the observations made hereinbefore. The civil revision petition is accordingly allowed.

HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY

Civil Revision Petition No.797 of 2013

Date: 05.03.2013

 

Between:

K.L.Swamy

..... Petitioner

AND

 

Gopinati Venkatesulu, and another

 

.....Respondents

 

Counsel for the Petitioner: Sri G.Vasantha Rayudu

Counsel for Respondent No.1: Sri Mallu Vishnu Vardhan Reddy

The Court made the following:

ORDER:

         This civil revision petition arises out of order, dated 12-06-2008, in I.A.No.733 of 2004 in O.S.No.197 of 1996, on the file of the learned Principal Senior Civil Judge, Anantapur.

         Heard the learned counsel for the parties and perused the record. 

         The petitioner is defendant No.2 in O.S.No.197 of 1996 filed by respondent No.1.  Respondent No.2 is defendant No.1 in the said suit.  The suit was filed for specific performance of an agreement of sale purported to have been executed by respondent No.2. In the said suit, the petitioner was set ex parte and an ex parte decree was passed on 03-09-1997.  The petitioner has filed I.A.No.733 of 2004 under Section 5 of the Limitation Act, 1963 for condonation of delay of 2500 days in filing the petition to set aside the ex parte decree.  This application was dismissed by the lower Court by the order under revision.

         A perusal of the order passed by the lower Court would show that it has disbelieved the version of the petitioner that suit summons were not served, only on the basis of the docket order dated 18-2-1997, in which it was recorded that summons were served on D-1 and D-2 by Post.  The lower Court while observing that in the face of the docket order, the petitioner cannot be permitted to plead that summons were not served, and that the burden is on him to prove that summons were not served. 

         In my opinion, the entire approach of the lower Court suffers from lack of rationality and reasonableness.  When the petitioner has taken the specific plea that summons were not served, the lower Court ought to have perused the record and rendered a finding based on the acknowledgment of the suit summons.  The lower Court cannot be solely guided by the docket proceedings without verifying the record.  Moreover, by placing the burden on the petitioner to prove that suit summons were not served, it has committed a serious illegality.  When a person pleads that summons were not served, the burden is on the opposite party to prove that the summons were served.  At any rate, having regard to the nature of the pleading, it is impossible for the person who raises such plea to prove in negative that summons were not served.

         For the above-mentioned reasons, the order of the Court below which borders on perversity cannot be sustained, and the same is accordingly set aside.  The case is remitted to the lower Court for disposing of I.A.No.733 of 2004 afresh by verifying the record relating to service of summons by holding a fresh enquiry in the light of the observations made hereinbefore.

         The civil revision petition is accordingly allowed.

         As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.1084 of 2013 shall stand disposed of as infructuous.

__________________________

C.V.NAGARJUNA REDDY, J

Dt.05-03-2013

Mva/Vgb