MOHAN PACHARI Vs. JAGDISH CHANDRA DUBEY

JUDGEMENT

(1.) CHALLENGING the concurrent orders passed by the trial Court and the appellate Court in rejecting the application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure, and refusing to set aside the ex parte judgment and decree of eviction passed against the petitioner, this petition is filed under article 227 of the Constitution.

(2.) THE suit in question was filed by the respondent for eviction of the petitioner on the ground of arrears of rent and various other grounds. Issues were framed and after recording of evidence of the plaintiff when the case was fixed for evidence of the defendant i. e. the present petitioner, on 2-4-2005, the petitioner remained absent and, therefore, ex parte proceedings were drawn and an ex parte judgment and decree was passed on 13-5-2006. An application was filed before the trial Court on 15-7-2005, challenging the ex parte judgment and decree. The application has been rejected by the trial court and the appellate Court on the ground that the application for setting aside ex parte decree is not filed within 30 days, no reasonable cause for the delay is shown and the application is dismissed on the ground that condonation of delay is not sought for by filing appropriate application under section 5 of the Limitation Act.

(3.) SHRI Manikant Sharma, learned counsel for the petitioner, emphasized that on 2-4-2005, when the case was fixed for evidence of the petitioner he fell suddenly sick. He was under treatment, could not appear and after the ex parte Judgment and decree was passed on 3-5-2006, petitioner approached his counsel on 17-5-2005. when he was informed about the ex parte judgment and decree being passed, he applied for certified copy which was given to him on 21-6-2005 and he immediately filed the application under Order 9 Rule 13 CPC on 15-7-2005. It is argued by Shri Manikant Sharma that if the period incurred by the petitioner for obtaining certified copy i. e. period from 13-5-2005 to 20-5-2005 is excluded, then the application for setting aside the ex parte judgment and decree is within time and in rejecting the application on the ground of delay and on the ground that application for condonation of delay under Section 5 is not filed, the learned Court has committed error.