THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1341 of 2009 Date of order: 8.4.2010 Between: V. Partha Sarathi …Petitioner and Kallepu Sammaiah and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1341 OF 2009 ORDER: 1. This revision is directed against the order of the court below refusing to condone the delay of 136 days in filing an application under order 9, Rule 13 of the Code of Civil Procedure (for short “the Code”). 2. The petitioner is the defendant No.2 in OS No. 634 of 2007 on the file of the II-Addl. Senior Civil Judge, Warangal. The said suit was filed for relief of specific performance of an agreement of sale and for delivery of vacant possession from the defendant No.2. The plaint was presented on 7.12.2007 and the summons in the suit were ordered to be served on both the defendants. 3. The case of the petitioner/D2 is that he was never served with the suit summons, but he was set ex parte on 30.1.2008, whereas the defendant No.1 was set ex parte on 27.2.2008. The trial court had examined the plaintiff as P.W.1 and decreed the suit ex parte as prayed for with costs, on 5.3.2008. The petitioner/D2 states that he came to know of the said ex parte decree when he was served with a notice in EA No. 81 of 2008 in EP No. 131 of 2008, on 13.8.2008 at 8.15 A.M. After receiving the said notice, the petitioner made inquires and came to know of the manner in which the ex parte decree was passed against him. Therefore, he filed an application under Order 9, Rule 13 of the Code together with an application seeking condonation of delay of 136 days from the date of knowledge. 4. The aforesaid application was opposed by the first respondent-plaintiff-decree holder on the ground that the petitioner, though received the summons, did not prefer to appear before the court and he was rightly set ex parte on 30.1.2008. The first respondent-plaintiff also states that the first defendant was also set ex parte and after the decree, a registered sale deed was executed in his favour on 31.7.2008 by receiving the balance of sale consideration and that only the relief with regard to eviction was being resisted by the petitioner herein who has no locus standi to contest the said relief. The first respondent-plaintiff, therefore, submits that he is now owner of the suit property as it was registered in his favour by the first defendant and he has every right to take possession of the property. The sufficient cause for not filing the petition under Order 9, Rule 13 of the Code within the prescribed time as alleged by the petitioner was, therefore, seriously disputed by the first respondent- plaintiff. 5. The Court below considered the application and was of the opinion that the suit summons was duly served on the petitioner/D2 through his brother as per the endorsement made in the suit summons and as the petitioner had not appeared before the court on the schedule date of hearing, he was set ex parte. The Court below also was of the opinion that the petitioner has already suffered eviction order in a rent control proceedings and in view of the eviction order passed against him and confirmed in CRP No. 5616 of 2001, dated 28.12.2001, the possession of the petitioner is not legal and thus it has drawn an adverse inference against the petitioner and held that summons was duly served as there is no material to show that though the summons was received by the brother of petitioner, no enmity with the brother was pleaded by the petitioner and consequently dismissed the application for condonation of delay which was found to be not properly explained. Hence this revision. 6. Heard Mr. B. Rammohan Reddy, learned counsel for the revision petitioner and Mr. O. Manohar Reddy, learned counsel for the respondents. 7. On earlier occasion I have called for the original record from the court below, particularly to examine the docket proceedings of the suit as well as the record relating to the service of summons. The original record shows that the summons in OS No. 634 of 2007 in Form No.2 for the schedule date of hearing on 29.1.2008 was served on the brother of the petitioner and according to the report of the bailiff, appended to the summons, also shows that when the summons was taken to the petitioner’s residence for service, he was found to be out of station and the summons was served on the brother of the petitioner-Mr. V. Srinivas. Basing on the said report of the bailiff, there was an office endorsement on the docket in the suit dated 30.1.2008 that the first defendant is unserved and the second defendant is served on his brother. Basing on the said office endorsement, the second defendant was set ex parte on the said date itself, as there was no appearance. 8. Order 5 of the Code prescribes the mode of service of summons and Rule 12 of Order 5 stipulates that whenever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Rule 15 of Order 5 states that when the defendant is absent from his residence at the time when the service of summons was sought to be effected on him, and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family residing with him. The report of the bailiff as well as other record of the suit clearly shows that two important ingredients of Order 5, Rule 15 of the Code are not satisfied in the present case. The bailiff does not state in his report that there is no likelihood of the petitioner being found at the residence within a reasonable time nor there is any mention made about whether the summons can be served on any other empowered agent of the petitioner. The service of summons on the brother of the petitioner cannot be said to be a sufficient service in terms of Rule 15 of Order 5 of the Code. The Court below has not appreciated this aspect and treated the service of summons as sufficient service. The impugned order to that extent, therefore, is not sustainable. 9. Similarly one finds in the impugned order reference to OS No. 31 of 2007 on the file of the Principal District Judge, Khammam, while discussing the present suit OS No. 634 of 2007 on the file of the II-Addl. Senior Civil Judge, Warangal. The suit OS No. 31 of 2007 is unconnected with the present suit. It appears to be a clear mistake on the part of the court below in treating the present suit as OS No. 31 of 2007. However, ignoring the said mistake as a typographical mistake also, the further assumption of the court below that just because an eviction order was passed against the petitioner, his possession is not a legal possession, appears to be totally uncalled for and is not sustainable in the eye of law in view of the fact that only issue before the court below was whether summons was served on the petitioner and whether there was sufficient cause for condonation of delay. When the first question is liable to be answered in favour of the petitioner, the delay in making an application deserves to be condoned as the petitioner has made out a sufficient case. In view of that, therefore, the impugned order cannot be sustained. 10. Mr. O. Manohar Reddy, learned counsel for the respondents, however, contends that in view of the fact that the first defendant was duly served and the decree of specific performance was primarily against the first defendant, the decree as a whole need not be set aside. He also submits that in view of the subsequent event that the balance of sale consideration was deposited and a sale deed was executed and registered in favour of the first respondent-plaintiff, the decree cannot be set aside in toto and he relies upon proviso to Order 9, Rule 13 of the Code in support of his contention. To my mind, these submissions are clearly premature and the scope of the present revision is only with respect to the correctness of the order of the Court below in refusing to condone the delay. It is open for the first respondent-plaintiff to urge all these contentions before the court below, while the said application is being considered by it. 11. Subject to the above observations, the revision petition is allowed, the impugned order is set aside and IA No. 317 of 2008 is allowed. The court below shall now take up the application under Order 9, Rule 13 of the Code and decide the same in accordance with law. 12. The Registry shall send back all the original records to the Court below immediately. _________________________ VILAS V. AFZULPURKAR, J Dt. 8.4.2010 KR