Case Note & Summary
The Civil Revision Petition arose out of a title suit (O.S. No. 466/2011) filed by one Smt. Akkayamma seeking declaration of title and permanent injunction in respect of an immovable property. The suit was initially dismissed on 09.09.2015. Aggrieved, the plaintiff preferred a regular appeal (R.A. No. 10108/2016) before the District Court, which was allowed ex‑parte on 02.12.2016, thereby decreeing the suit. The first respondent herein, who was defendant No. 2 in the suit and was placed ex‑parte both at the trial and the first appellate stages, filed a miscellaneous petition under Order 41 Rule 21 of the Code of Civil Procedure, 1908 (CPC) in 2019 to set aside the ex‑parte decree in the appeal. There was a delay of 880 days in filing that petition, and an application under Section 5 of the Limitation Act, 1963 was filed for condonation of the said delay. The delay was condoned by order dated 21.02.2023, and subsequently the miscellaneous petition was allowed on 15.12.2023, resulting in recall of the ex‑parte judgment and restoration of the regular appeal. The revision petitioners claimed to be bona fide purchasers of the suit property from a transferee of the original plaintiff and challenged the order setting aside the ex‑parte decree. Before the High Court, the petitioners contended that the defendant had been served with notice in the regular appeal by registered post and, having not appeared, had been validly set ex‑parte. They relied on the presumption of service under Section 27 of the General Clauses Act, 1897 and argued that the defendant had not produced any cogent evidence to rebut that presumption. They further contended that the power of attorney holder who filed and prosecuted the miscellaneous petition lacked personal knowledge of the factual circumstances, as the power was executed many years after the relevant events, and thus his evidence could not be accepted. Additionally, they submitted that the application for condonation of delay was hopelessly insufficient, disclosing no valid cause for the enormous delay, and that the Misc. Court had mechanically condoned it. On the other hand, the respondent no.1/defendant No. 2 argued that summons were never served upon him, that the postal acknowledgment was not produced, and that the power of attorney holder was competent to depose as the property manager. The High Court, analyzing the record, found that the order sheet of the first appellate court clearly indicated that notice had been sent by registered post to the correct address and was not returned. Consequently, the statutory presumption of service under Section 27 of the General Clauses Act came into play. The defendant had not led any evidence to rebut that presumption−merely stating that he was unaware did not suffice. The Court further held that the power of attorney holder, having been appointed in 2023, had no personal knowledge of the service-related events of 2015, and his evidence was inadmissible to rebut the presumption. On the aspect of limitation, the Court underscored that whenever a petition under Order 41 Rule 21 CPC is filed beyond the prescribed period, a separate and proper application under Section 5 of the Limitation Act is imperative, setting out the reasons for each day’s delay. In the present case, the application was vague and did not offer any plausible explanation. The order condoning the delay was thus passed without due application of mind and was liable to be set aside. Given the cumulative irregularities−ignoring the unrebutted presumption of service, relying on inadmissible evidence, and condoning delay mechanically−the High Court concluded that the order of the Misc. Court suffered from material irregularity and illegality. Accordingly, the Civil Revision Petition was allowed. The order dated 15.12.2023 passed in Misc. Petition No. 10007/2019 was set aside, the miscellaneous petition was dismissed, and the judgment and decree in R.A. No. 10108/2016 were confirmed.
Headnote
A) Civil Procedure - Service of Summons - Presumption under Registered Post - Code of Civil Procedure, 1908, Order 5 Rule 19-A; General Clauses Act, 1897, Section 27 - The defendant contested that the summons in the regular appeal were not served. The court held that once notice is sent by registered post to the correct address and is not returned, a mandatory presumption of service arises under Section 27 of the General Clauses Act. This presumption can only be rebutted by clear and cogent evidence, which the defendant failed to provide. The Misc. Court erred by accepting a mere denial and overlooking the presumption. Held that service was duly effected. (Paras 19-23, 28-29) B) Limitation - Condonation of Delay - Necessity of Proper Application - Limitation Act, 1963, Section 5; Code of Civil Procedure, 1908, Order 41 Rule 21 - The Misc. Petition to set aside the ex-parte decree was filed with a delay of 880 days. The court emphasized that a petition under Order 41 Rule 21 beyond limitation must be accompanied by a proper application under Section 5 explaining each day's delay. The application filed was vague and insufficient. The Misc. Court mechanically condoned the delay without examining the cause. Held that the delay condonation was invalid and the petition ought to have been dismissed. (Paras 24-27, 30-32) C) Evidence - Power of Attorney Holder - Competence to Depose - Evidence Act, 1872, Sections 60, 118 - The petition was filed by a power of attorney holder who had no personal knowledge of the facts regarding service, as the power was executed in 2023 for events of 2015. The court held that a power of attorney holder cannot depose on facts outside his personal knowledge. Such evidence is inadmissible and cannot rebut the presumption of service. Held that the Misc. Court erred in relying on such evidence. (Paras 20-22) D) Civil Procedure - Transfer of Appeal - Jurisdiction under Order 41 Rule 21 - Code of Civil Procedure, 1908, Order 41 Rule 21 - The regular appeal was transferred from the Senior Civil Judge to the District Judge by suo motu order. The court held that upon transfer, the transferee court has all powers and can entertain a petition under Order 41 Rule 21. The contention that the petition could not be filed before the transferee court was rejected. (Paras 13-16) E) Civil Procedure - Revisional Jurisdiction - Scope under Section 115 - Code of Civil Procedure, 1908, Section 115 - The High Court can interfere in revision when there is a material irregularity or illegality in the exercise of jurisdiction. Here, the Misc. Court's order suffered from multiple errors, including ignoring the presumption of service, condoning delay without cause, and accepting inadmissible evidence. Held that the order was patently illegal and liable to be set aside. (Paras 33-38)
Issue of Consideration
Whether the Misc. Court was justified in setting aside the ex-parte decree in the regular appeal under Order 41 Rule 21 CPC when the defendant failed to rebut the presumption of service under Section 27 General Clauses Act, and in the absence of a proper application for condonation of delay; whether the power of attorney holder could maintain the petition and depose on facts without personal knowledge.
Final Decision
Civil Revision Petition allowed. Order dated 15.12.2023 passed in Misc. Petition No.10007/2019 set aside. Misc. Petition dismissed. Decree in RA No.10108/2016 confirmed.
Law Points
- Section 27 General Clauses Act presumption of service
- rebuttal requires clear evidence
- power of attorney holder cannot depose on facts outside personal knowledge
- condonation of delay requires proper application explaining each day's delay
- Order 41 Rule 21 petition must be supported by sufficient cause
