AMARJIT SINGH Vs. BALWANT SINGH

JUDGEMENT

(1.) THIS order shall dispose of the above mentioned 3 revision petitions, as the common question of facts and law arise in these petitions. For the purpose of convenience, the facts of C.R. 1069 of 1999 may be noticed.

(2.) AMARJIT Singh and another filed a suit for permanent injunction against Balwant Singh. In the said suit Balwant Singh appeared through his counsel in response to the notice on 9.5.1994 before the trial court and the case was adjourned to 25.5.1994 for written statement on which date the case was adjourned to 9.6.1994 for filing written statement and the written statement was not filed and at the request of the counsel, the case was adjourned to 23.7.1994 for filing written statement and reply to the injunction. On 23.7.1994 neither the defendant nor his counsel appeared before the trial court and accordingly the defendant was proceeded against ex parte and the case was adjourned to 11.11.1994 for ex parte evidence of the plaintiffs. Finally, after recording the ex parte evidence of the plaintiffs, the learned trial court decreed the suit ex parte on 19.4.1995. After more than two years i.e. on 13.6.1997, the defendant filed an application under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree dated 19.4.1995, inter alia on the ground that the said judgment and decree were liable to be set aside as the plaintiffs had played a fraud upon the defendant. It was alleged that after the suit was instituted, the parties had entered into compromise on 15.6.1994. Photocopy of the said compromise was annexed with the application, alleging that the original was in the police post. It was alleged that after the compromise the plaintiffs told the defendant that he need not go to Court as the undertook to withdraw the suit. It was alleged that it was only when the plaintiffs refused to pay the rent to the defendant that he served a notice to them and in reply to the notice, the plaintiffs stated that there was no relationship of landlord and tenant as they had obtained judgment and decree dated 19.4.1995 from the trial court. It was alleged that it was only thereafter that the defendant came to know about the existence of the said judgment and decree and accordingly the application for setting aside the ex parte order was filed. The said application was contested by the plaintiffs by filing written reply alleging therein that the application was hopelessly barred by time. It was denied that any compromise was arrived at between the parties as alleged. Both the sides led evidence in support of their respective contentions. The learned trial court after hearing both sides and after perusing the record set aside the ex parte judgment and decree dated 19.4.1995 vide order dated 15.1.1999. It is against this order of the trial court that the revision petition has been filed by the plaintiffs.

(3.) THE learned counsel for the plaintiffs-petitioners has submitted that even though the application under Order 9 Rule 13 was barred by time by more than 2 years, yet the learned trial court had not adverted to this fact and had held that the application was within time from the date of knowledge. He has submitted that under Article 123 of the Limitation Act the limitation was 30 days from the date of decree in those cases where the summons or notice had been duly served upon the defendants and it is 30 days from the date of knowledge where the summons or notice had not been duly served. He has submitted that in the present case admittedly the defendant was duly served and had appeared in the court through his counsel and had sought time to file written statement but inspite of 3 adjournments, no written statement was filed and ultimately no one had appeared on behalf of the defendant and as such the limitation for filing the application under Order 9 Rule 13 CPC would be 30 days from the date of decree. Reliance has been placed on AIR 1979 Madras 36, International Cotton Traders, Tatabad, Coimbatore v. P. Narayanaswmi and AIR 1925 Bombay 444, Ghanshiram Baluram v. Misrilal Chunilal.