JAVED KHAN Vs. AVTAR SINGH

JUDGEMENT

(1.) PLAINTIFF/respondent sued the petitioner and his father for eviction from the suit shop under the provisions of M. P. Accommodation Control Act. Initially, the suit was instituted against the petitioner alone. Subsequently, vide order dated 7-12-1990 Aziz Mistry was also joined as defendant No. 2. The petitioner submitted his written statement, although, his father was proceeded against ex parte. Subsequently, the petitioner also absented from the proceedings of the Civil Suit and an ex parte decree for the eviction was passed on 28-4-1995. It was contended that Aziz Khan was not duly served with summons whereas the petitioner was seriously ill from 16-4-95 to 16-5-95 and was unable to move on account of illness.

(2.) IT was further submitted that the petitioner on regaining health contacted his lawyer on 27-6-1995 when he came to know about the ex parte decree. He applied for certified copy on 27-6-1995 which was partly supplied to him on 7-7-1995 in the sense that the certified copy of the decree was not delivered. He again submitted an application for certified copy of the decree which was received by him on 1-8-95.

(3.) THE defendant/applicant submitted in their application under Order 9 Rule 13 of Civil Procedure Code that they came to know about the ex parte decree on 27-6-95 and, accordingly, the application for setting aside the ex parte was duly submitted (it is important to note that no application under Section 5 of the Indian Limitation Act for condonation of delay along with the application for setting aside decree was submitted ). The plaintiff/decree holder submitted his reply and opposed this application. He refuted the averments contained in the application for setting aside the ex parte decree. He also raised an objection about limitation.