THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.NO.839 OF 2009 ORDER: This civil revision petition is directed against the order dated 31-10-2008 in I.A.No.103 of 2007 in O.S.No.147 of 2001 on the file of Junior Civil Judge, Siddipet, wherein the said application filed by the petitioners-defendants herein under Section 5 of the Limitation Act to condone the delay of 1901 days in filing the petition to set aside the ex parte decree, was dismissed. Heard both the sides. Perused the records. The respondents herein filed the suit in O.S.No.147 of 2001 for permanent injunction against the petitioners- defendants in respect of the plaint schedule property of 250 square yards situate at Chellapur, Dubbak Mandal, Medak District. Petitioners/D1 and D2 and first respondent/plaintiff No.1 are brothers. Second respondent-plaintiff No.2 is wife of another brother of the defendants. The suit was filed on 14-12-2001. As seen from the judgment and decree, the defendants were set ex parte on 21-12-2001 and the suit was decreed ex parte on 27-12-2001. According to the petitioners-defendants, notices were not served on them in the suit, when the suit was filed on 14-12-2001. It is not known how summons would be served on the defendants who were residing at different places away from Siddipet within one week. There is nothing on record to show that summons were served on the defendants in the suit. As seen from the impugned order of the trial Court, the summons were destroyed in the usual course as they pertain to the year 2001 and forms part-II. Just because the summons were physically not available for verification, no inference of service of summons on the defendants can be drawn when the defendants have physically pleaded that summons were not served on them and when the said plea appears to be plausible in view of the short interval of only one week between the date of filing of the suit and the date on which they were set ex parte. The burden squarely lies on the plaintiff to establish that summons were in fact served on the defendants. In spite of service of summons, the defendants did not choose to appear. The trial Court appears to have drawn adverse inference against the petitioners-defendants about service of summons on them. Though admittedly physical verification of the summons was not possible as they were destroyed having regard to the fact that the defendants were set ex parte within one week of filing of the suit, the trial Court ought to have seen that service of summons on the defendants within the short interval is usually not possible, unless it is shown from the record that the summons were in fact served. As rightly contended by the learned counsel for the petitioners the very fact that the defendants were set ex parte within a period of one week of filing of the suit raises any amount of suspicion over the manner in which the suit came to be disposed of. Be that as it may, having regard to the fact that there is no proof of service of summons on the defendants and the manner in which the defendants were set exparte being shrouded in mystery, it is considered that it is a fit case where the defendants should be given an opportunity to contest the suit. According to the petitioners/defendants they came to know about the ex parte order passed in the suit only on the plaintiffs filing a caveat in another matter just before filing of the present application. Having regard to the peculiar facts and circumstances of the case, it is considered that the delay of 1901 days in filing the petition to set aside the ex parte is liable to be condoned, so that opportunity is given to the defendants to contest the suit instead of allowing ex parte decree to prevail. The impugned order is therefore held un-sustainable and is accordingly set aside. In the result, the civil revision petition is allowed. _____________________ G.V.SEETHAPATHY,J Rkk Dated: 15-2-2011