SHRI JAGAT GURU SHANKRACHARIYA Vs. SIDDHU ENGINEERING WORKS

JUDGEMENT

(1.) THE reference has been made by learned Single Judge vide order dated 26-3-2010. Following question has been referred for consideration:

(2.) THE petitioner has filed an eviction suit against respondents/defendants. In the said Civil Suit, summons were duly served upon the defendants. Defendants appeared before the Trial Court, written statement was also filed. As the rent was not deposited, an application under Section 13 (6) of M.P. Accommodation Control Act, 1961 was filed. THE Trial Court ultimately ordered striking-off the defence of defendants/tenants. THEreafter, defendants were proceeded ex parte. THE Civil Suit was filed in the year 2003. THE defendants again appeared in the Civil Suit on 26-8-2006 and filed an application under Order 9 Rule 7 for setting aside the ex parte order. THE said application was dismissed as not maintainable as the case was already closed for judgment. On 12- 9-2006, ex parte judgment and decree was passed in favour of the petitioner, even then application was not filed within 30 days to set aside ex parte judgment and decree. It is submitted that on 16-11-2006 application was filed under Order 9 Rule 13, CPC for setting aside ex parte decree without filing any application seeking condonation of delay. THE plea was taken that the defendants had applied for certified copy of the judgment and decree, which was supplied on 1-11-2006, therefore, the application filed under Order 9 Rule 13, CPC was within the period of limitation. THE petitioner filed reply to the application contending that application was barred by limitation.

(3.) MS. Neelam Goel, learned Counsel appearing for the petitioners has submitted that it is not the legal requirement to file certified copy of the judgment and decree along with the application under Order 9 Rule 13 of CPC. The time spent for obtaining the certified copy cannot be excluded under Section 12 of the Limitation Act. She has relied upon Article 123 of the Limitation Act that in such cases where summons have been served, appearance has been made, the period of the limitation is 30 days from the date of decree. She has also submitted that the case of Shakunlala Singh (supra), is different as in the said case service of summons itself was disputed. In the instant case, defendants/judgment debtors were duly served with the summons, they filed written statement, contested the suit for 3-4 years and only when their defence under Section 13 (6) of M.P. Accommodation Control Act, 1961 had been struck-off, intentionally they absented and were proceeded ex parte. Once defence was struck off, they had nothing to defend in the case. The defendants were well aware of the ex parte proceedings. The defendants filed application under Order 9 Rule 7 of CPC before judgment was delivered. There was no justification to file application under Section 9 Rule 13, CPC belatedly. No application under Section 5 of the Limitation Act was filed. Thus decree cannot be set aside in the facts and circumstances of the case.