THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION NO.3630 OF 2011 ORDER: The petitioner is defendant in O.S.No.146 of 2006 on the file of Court of I Additional Senior Civil Judge, Rajahmundry, East Godavari District. The respondent/plaintiff filed the said suit for specific performance of agreement of sale, dated 01.11.2005. The suit was decreed ex parte on 13.07.2006. Thereafter, the respondent filed E.P.No.251 of 2009 praying the Court to execute sale deed in accordance with the decree. At that stage, the petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC), to set aside the ex parte decree. As there was a delay, the petitioner filed I.A.No.249 of 2010 under Section 5 of the Limitation Act, 1963 (“the Act” for brevity), seeking condonation of delay of 1260 days in presenting the application under Order IX rule 13 CPC. The same was opposed by the respondent. By order, dated 03.06.2011, the Court of I Additional Senior Civil Judge, Rajahmundry, dismissed the said application, against which the instant revision is filed under Section 115 CPC. The counsel for the petitioner would submit that finding of service of summons is improbable. He would point out that the endorsement made by the Process Server was attested by one Md. Kharimullah, who is resident of Rajahmundry. According to him, when the Process Server endorsed that in spite of intervention of village elders, the petitioner refused to receive the suit summons, nothing prevented the Process Server to obtain the attestation of the local villagers and there was no necessity to obtain the attestation of a resident of Rajahmundry. He would submit that only after receiving the notice in the E.P., the petitioner came to know about the suit and on enquiries, he found that the respondent managed the service of summons on the petitioner. It is well settled that when the civil Court refused to condone the delay under Section 5 of the Act, the appellate/revisional Court has to consider the matter independently (See N.Balakrishnan v. M.Krishnamurthy[1]). Keeping this principle in view, this Court has considered the application of the petitioner filed before the lower Court. In his affidavit accompanying I.A.No.249 of 2010, the petitioner alleged as follows. “I submit that the respondent/plaintiff proceeded with the suit transaction in my absence and the Hon’ble Court passed ex parte decree on 13.07.2006. I gained knowledge about the suit proceedings that was initiated by respondent/plaintiff only after receiving notice on Execution Proceedings i.e., in E.P.No.251/2009 in O.S.No.146/2006 pending on the file of this Hon’ble Court. Thereupon, I caused enquiries about the suit transaction filed by Respondent/Plaintiff, such enquiries revealed that the respondent/plaintiff fraudulently with a dishonest intention managed to write written endorsement on suit summons as I refused to take summons. In fact, no such summons proposed to serve on me in the above suit as such the question of refusal not arise at all. I submit that I got substantial defense in the suit and I will put forth with same in my written statement. There are no wilful latches on my part in not prosecuting the matter, as I have not received summons in the suit and I got knowledge about the decretal claim of the respondent/plaintiff in the execution proceedings only.” The above averments were categorically denied by the respondent. In his counter, he stated that the petitioner received summons from the Court and wantonly did not appear before the Court. Order V CPC contains rules for issue and service of summons. Sub Rule (5) of Rule 9 thereof with its provisions reads as under. Order V Rule 9 (5) CPC: When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received bythe Court or postal article containing the summons is received back by the Court within an endorsement purporting to have been made by a postal employee or by any person authorised by a courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. In view of the above Rule, if the endorsement made by the Process Server to the effect that the petitioner refused to receive the summons is believed, the petitioner cannot have any grievance. Be it noted, the non-service of summons is a formidable ground to set aside an ex parte decree provided, the defendants satisfy the Court in that regard. Secondly, as per Order V Rule 9, the Court summons can be sent by registered post acknowledgment due; courier service; or any other means of transmission of documents including fax message or electronic mail service as per the Rules made by the High Court. After a Court summons is sent to the party and the same is returned with a postal endorsement that it is ‘refused’ or ‘addressee continuously is not available in the house’, it shall be deemed to have been served. In C.C. Alavi Haji v. Palapetty Muhammed[2], Supreme Court held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’, it is presumed that the notice is served. The relevant observation of Supreme Court is as under. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by a registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. The Court below has also considered this aspect of the matter and observed that summons was sent by the postal authorities returned with the endorsement that the petitioner refused the postal cover. This will amount as sufficient service of summons as held by the Supreme Court in Alavi Haji v. Palapetty Muhammed. Further, the mere fact that this endorsement of the Process Server on the reverse of the suit summons was attested by a resident of Rajahmundry by itself does not support the case of the petitioner. The huge delay of 1260 days is, therefore, not properly explained. This Court does not find any error in the order passed by the Court below. The Civil Revision Petition is, accordingly, dismissed. No costs. _______________ (V.V.S.RAO, J) 16th September 2011 RRB [1] AIR 1998 SC 3222 [2] (2007) 6 SCC 555