RAM CHANDRA Vs. RADHEY SHVAM

JUDGEMENT

(1.) Heard learned Counsel for the appellant. This appeal arising out of dismissing an application field by the application as 6-Ga-2 under section 5 of the limitation Act. It appears that respondent filed a suit for cancellation of sale deed that was dismissed vide judgement and decree dated 16.11.1996. Plaintiff respondent filed an appeal as appeal No.440 of 1996, which was allowed ex parte vide its judgment and order dated 1.12.1998. The application under Order XLI Rule 1 CPC was filed by applicant on 18.12.2006 for setting side ex parte decree dated 1.12.1998 with an application under section 5 of Limitation Act. Explanation given in the application is that he has not received any notice and therefore, he could not appeared before the Court. Further, an averment has been made that the publication was done in the local newspaper, which is not widely circulated at Maumbai. As the applicant is presently residing at Mumbai, therefore, he was having no knowledge, therefore, in such circumstances, the ex parte decree may be set aside.

(2.) An objection was filed on behalf of the plaintiff respondent stating therein that the appellant was having knowledge, they have filed an application No. 19 of 2002 Ram Chander v. Radhey Shyam, which was before the same Court and in the absence of the parties on 21.9.2002 it was dismissed, meaning thereby in 2002, he was having knowledge of the ex parte decree. In such circumstances, it has been submitted that the reasons and grounds taken in section 5 application appears to be incorrect and based on no evidence. If an application under section 5 of Limitation Act has been filed for condonation of delay, day to day explanation has to be given. If it has not been given, there is a presumption in law that reasons discloses in the application under section 5 of the Limitation Act is not correct. The contention of the appellant to that effect that they came to know regarding ex parte decree in 2006 is not correct. After the decision, an objection was filed in 2001 and in that objection, a mention was there regarding decision in appeal No. 440 of 1996.

(3.) The Appellate Court on the basis of pleading of the parties has recorded a fining that in original suit No. 173 of 1993, the appellant in the present application was defendant and the address given in the plaint was Kharshan, he appeared in the suit and the suit was decided on merits. Though, now he mentioned his address as Kharshan Kala, a finding to that effect has also recorded that defendant appellant has not rebutted such finding that how he has appeared before the Court.