PRAYAS CONSTRUCTION COMPANY Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) S. K. Phaujdar, J. This application under Section 115 C. P. C. is directed against an order dated 29-2-96 recorded by Snri Jitendra Singh, Civil Judge, Agra, in Misc. Case No. 55 of 1996 arising out of the Original Suit No. 119 of 1994.

(2.) THE suit in question was filed by the present applicant for recovery of certain money due from the Opposite Party, Smt. Shakuntala Devi. The suit was heard and decreed ex parte. On an application under Order 9 Rule 13 C. P. C. , read with Section 151 C. P. C. at the instance of Smt. Shakuntla Devi the learned Civil Judge (Senior Division), Agra, registered Misc. Case No. 55 of 1995 and allowed the application and set aside the ex parte decree dated 22-4-94, passed in Original Suit No 119 of 1994 and restored the suit for hearing and fixed a date for submission of written statement by the defendant Smt. Shakuntla Devi. This order dated 29-2-96 is now impugned in this ap plication. The parties filed affidavit, sup plementary affidavit, counter and rejoinder affidavits to put in facts, and documents in support of their contentions. 3. It was the case of Smt. Shakuntla in her application under Order 9 Rule 13 C. P. C. that she had no knowledge of the suit and the ex parte decree was obtained by forging papers to indicate service of notice of her. It was state that she was a resident of New Agra but the summons was allegedly served at Kamla Nagar. It was asserted by her that she obtained knowledge of the decree on 21-2-95 when she was threatened by the plaintiff's men with dispossession from the suit house. The decree holder plaintiff objected to the prayer under Order 9 Rule 13 and asserted that summons was served in the proper manner on Smt. Shakuntla Devi and the theory of the knowledge of the decree on 21-2-96 was set up only to save limitation. It was further stated by the decree holder that notice under Order 21 Rule 66 was also served on the defendant Smt. Shakuntla Devi and she had every knowledge that the house was put to sale in pursuance to a decree. 4. The learned Court below was of the view that the summons was not served on Smt. Shakuntla Devi and admittedly no registered post notice was sent as required under order 5 Rule 19-A of the C. P. C. It was further the view of the learned trial court that alongwith notice, even if served, copies of plaint and other papers were not served and in that light also service was not proper. Two hand-writing experts were examined, one each by the contending parties, on the question of the identity of the handwriting of Smt. Shakuntla Devi on the service return of the summons. The expert examined by the plaintiff supprted the plaintiff's wersion while the expert examined by the defence supported her version. It was held that the reports were not legally proved by the parties. the court below accepted the application on the ground of absence of service of summon and set aside the ex parte decree. 5. Order 9 Rule 13 C. P. C. states that in any case in which a decree is passed ex parte against the defendant, he may apply to the court, by which the decree was passed, for an order to set it aside and if he satisfied the court that the summons was not duly served or that he was prevented by any sufficient cause from appearance when the suit was called for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs payment to court or otherwise as he thins fit. It was contended on behalf of the opposite party that when her plea was accepted and the court had held that summons was not duly served and when the other party was heard under Order 9 Rule 15, the impugned order cannot be reversed or modified. The second proviso to order 9 Rule 13 states that no court shall set aside the decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of the hearing and had sufficient time to appear and answer the plaintiff's claim. The learned counsel for the applicant submitted that the court below failed to look to this proviso and even if there had been some irregularity in describing the address of the defendant, undoubtedly it was served at her New Agra residence only and not in Kamla Nagar and she had the notice of the date of hearing and she had intentionally failed to appear. 6. An application under Order 9 Rule 13 is to be filed within 30 days from the date of the decree or within the 30 days from the date of the acknowledge of the decree in terms of the Article 123 of the Indian Limitation Act. There was an assertion that the application gathered knowledge of the ex parte only on 21-2-95 and there was equally a denial of this fact in the objection filed by the decree holder. It is undisputed that after the ex parte decree the house of the applicant was put to sale and sale proclamation was also issued. It was stated that papers were there on record to indicate that notice of the sale proclamation was cent and served on the defendant long prior to 21-2-95 and it was to be presumed that she had knowledge of the service of that notice and the application was, therefore, barred by the limitation. 7. The perusal of the order indicates that the learned court below engaged itself to the question of the service of summon and did not look to the second proviso of Order 9 Rule 13 C. P. C. to see of the defendant had knowledge of the date of the hearing the learned court below did not engage it self at all to see if the defendant Smt. Shakuntla devi had knowledge of the decree on 21-2-95as alleged by her or on any prior date as alleged by the plaintiff-decree holder. The question of limitation is a question touching the jurisdiction of the court as time barred applications are not to be acted upon unless the delay is condoned. The court failed to observe even in one line that the defendant had gathered knowledge of the decree only on 21-2-95. The absence of discussion on this point by the court below is certainly a jurisdictional error as contemplated under section 115 C. P. C. atleast to the extent that he had proceeded to exercise his jurisdiction under Order 9 Rule 13 C. P. C. with material irregularity for not having referred to the question of the limitation which was under challenge. The order no doubt covered by the clause (a) of the first proviso to Section 115 C. P. C. as the dismissal of the application under Order 9 Rule 13 would have finally disposed of the matter. 8. This court in exercise its power under section 115 C. P. C. would not give a finding on a point of fact. It must be done by the court taking up the application under order 9 Rule 13. 9. Under these circumstances the application must be and is allowed. The impugned order dated 29-2- 95 is set aside. The matter is remanded back to the court below for reconsideration of the application under Order 9 rule 13 C. P. C. keeping in mind the second proviso thereto as also the provisions of article 123 of the Indian Limitation Act. He will record an order indicating his finding if the defendant had gathered knowledge of the decree on 21-2-95 as alleged or on any other earlier date, for example, the alleged service of the notice under Order 21 Rule 66 C. P. C. The materials already on record may be perused and, of necessary, the parties may be given further opportunity to put in their evidence and arguments on this aspect. Till the application under Order 9 Rule 13 C. P. C. stands disposed of by the court below, the ex parte decree shall not be executed further. The parties are directed to appear before the court below on 9-9-96 and the court below is required to dispose of the application under from the date of appearance of the parties before it. Application allowed. .