HARI SHANKAR PATEL Vs. ASHUTOSH PATEL

JUDGEMENT

(1.) This miscellaneous appeal has been preferred by appellant/defendant challenging the order dtd. 13/1/2015 passed by learned 18th Additional District Judge, Jabalpur in MJC No.100/2014 whereby application under Sec. 5 of the Limitation Act filed in support of an application under Order 9 Rule 13 CPC has been dismissed and consequently application under Order 9 Rule 13 CPC registered as MJC, has also been dismissed.

(2.) Learned counsel for the appellant/defendant submits that in the suit for specific performance filed by the respondent/plaintiff, no notice was served upon the defendant and vide order dtd. 21/9/2010, the defendant was proceeded ex parte. Learned counsel submits that after proceeding ex parte against the defendant and after filing affidavits of chief examination under Order 18 Rule 4 CPC of the plaintiff's witnesses, the plaintiff filed certain documents/original agreement of sale on the next date i.e. on 12/1/2011, which being improperly stamped was impounded and duty and penalty was imposed and collected even without giving opportunity to the defendant and thereafter again ex parte evidence of all the witnesses was recorded on 8/8/2011. Later on, the plaintiff himself moved applications under Order 6 rule 17 CPC and under Order 1 Rule 10 CPC on 23/8/2011 in respect of joinder of State Govt. and both the applications were allowed by learned trial Court even without issuing further summons to the defendant. He submits that in fact no notice was served upon the defendant and ultimately in these circumstances ex parte judgment and decree was passed on 28/9/2011. Upon service of summons of execution proceeding along with copy of ex parte judgment and decree dtd. 28/9/2011, the defendant got knowledge and immediately moved applications under Order 9 Rule 13 CPC and under Sec. 5 of the Limitation Act duly supported by affidavits with the prayer of setting aside ex parte judgement and decree and for condonation of delay of about 130 days.

(3.) After service of notice on the respondent/plaintiff, he filed reply to the application and contended that the defendant was duly served with the summons in the original suit but did not appear deliberately and was proceded ex parte. The defendant did not appear even after service of notice issued by the Collector of stamps in the proceeding of impounding the agreement of sale. It is also contended that the application being barred by limitation, is not entertainable and deserves to be dismissed.