OM PRAKASH Vs. IIIRD A D J RAMPUR

JUDGEMENT

(1.) Heard Shri Manu Saxena, advocate on behalf of the Petitioner, Shri Siddharath Verma, advocate on behalf of contesting Respondents and the standing counsel for the State-Respondents.

(2.) This is the Defendant's writ petition. Respondent No. 3, Vijay Kumar filed Original Suit No. 166 of 1989 for specific performance of the agreement to sell in respect of the property in dispute. Along with the plaint, an application for temporary injunction was also made. Notices were issued to the Defendants on the application. Appearance was put in on behalf of the Defendants. Request was made on their behalf on at least four dates for filing of the written statement. Even then they failed to do so, ultimately, on 21.4.1990 the suit was decreed ex parte. The Defendants made an application under Order IX, Rule 13 for setting aside the decree on the allegation that the case was fixed under an order dated 19.2.1990 for 17.4.1990 but due to mistake, counsel for the Defendant, recorded the next date in his diary as 21.9.1990. Because of the said mistake, counsel could not appear on 17.4.1990 and the Court proceeded ex parte in the matter and ultimately decreed the suit ex parte on 29.5.1990. It was further stated that the Defendant on coming to know of the ex parte decree, made an application on 31.7.1990 for setting aside the same. Along with the recall application, another application was made under Section 5 of Limitation Act supported by an affidavit of the counsel concerned, which amongst other recorded that there has been mistake on the part of the counsel in recording the next date which was fixed on 19.2.1990.

(3.) The application so made under Section 5 of Limitation Act was rejected by the trial court under an order dated 24.2.1992. As a result whereof the application for setting aside the ex parte decree was dismissed as barred by limitation.