SUKAI Vs. VIITH ADDL DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) VINEET Saran, J. The petitioner filed a Suit No. 1856 of 1985 against the respondent No. 3 praying for a decree of injunction and demolition. Since, allegedly the respondent No. 3 refused to accept the summons sent to him by the trial Court, an order to proceed ex-parte against him was passed by the trial Court on 30-9-1985. In the absence of any written statement having been filed by the defendant- respondent No. 3, the trial Court accepted the averments made in the plaint to be correct and decreed the suit vide its judgment dated 14-10-1985 (filed as Annexure-1 to the writ petition ). By a simple half page order the suit had been decreed without framing any issues or recording any finding as to whether the averments made in the plaint were correct or not, and if correct, on what basis.

(2.) WHEN the execution proceedings were initiated, the defendant- respondent No. 3 came to know of the said ex-parte decree having been passed against him. He then filed an application under Order IX, Rule 13 C. P. C. for setting aside the same mainly on the ground that he had no knowledge of the said decree having been passed against him as no summons were ever served on him nor did he ever refuse to accept the same. In his application filed on 16-12-1986, it was stated that both the parties had arrived at a compromise in the presence of the Gram Pradhan much before the filing of the suit and he had no knowledge of any suit having been filed by the plaintiff. It was only when the execution proceeding was initiated against him that he learnt about the said ex parte decree on 15-12-1986 and immediately thereafter he got the file inspected through his lawyer and filed the application for setting aside the same on the very next date. The plaintiff-petitioner filed objections to the said application on 8-1-1987, wherein he stated that the notice was sent to the defendant-respondent No. 3 which he refused to accept and hence the Court rightly directed that the case to proceed ex parte against the said defendant. It was simply denied that the said defendant had no knowledge of the ex parte decree prior to 15-12-1986. As such the plaintiff-petitioner prayed that the application for setting aside the ex parte decree be dismissed.

(3.) SRI R. C. Singh has submitted that the application under Order IX, Rule 13 C. P. C. filed by the defendant- respondent No. 3 was filed beyond the period of 30 days and since it was not accompanied by an application under Section 5 of the Limitation Act for condonation of delay, the application could not have been considered and decided on merit. In support of his contention, learned Counsel has relied on two decisions of the Apex Court reported in 1997 (2) JCLR 871 (SC) : JT 1997 (8) S. C. 189 (P. K. Ram Chandran v. State of Kerala,) and 1999 (1) JCLR 743 (SC) : JT 1998 (8) SC 529 (Ramkali Devi v. Manager, Punjab National Bank,) In the said decisions, applications for condonation of delay had been filed and without considering the same or condoning the delay, the Courts passed orders on the merits of the cases. In the present writ petition, the case of the defendant-respondent No. 3 is that he had no knowledge of the ex parte decree until 15-12- 1986 and immediately thereafter on the very next date, he filed the application under Order IX, Rule 13 C. P. C. for setting aside the ex parte decree. Under Article 123 of the Schedule to the Limitation Act, 1963, the period of limitation provided for filing an application to set aside an ex parte decree is 30 days. The said period of 30 days is to be counted from the date of the decree; or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The present case falls in the second category where the summons or notice was not duly served but was deemed to have been served without recording any reason for the sufficiency of service, which the revisional Court has held to be doubtful. In such circumstances, when it has been categorically stated that the said defendant got knowledge of the ex parte decree only on 15-12-1986, in the absence of any specific averment or proof as on which date prior to the said date, the defendant had come to know of the passing of the ex parte decree, the said application under Order IX, Rule 13 having been filed on 16-12-1986, was well within time as per the provisions of Article 123 of the Limitation Act. Accordingly, I do not find force in the submission of learned Counsel for the petitioner that without condoning the delay, the said application under Order IX, Rule 13 C. P. C. could not be decided on merits.