JOGINDER KAUR Vs. PARAMJIT KAUR

JUDGEMENT

(1.) This revision petition is directed against the order of the Additional District Judge, Karnal, dated 27th March, 1990, whereby the order of the trial Court dismissing the application under Order 9 Rule 13, Code of Civil Procedure (hereinafter called the Code), was set aside and the trial Court was directed to decide the suit on merits after providing opportunity to the parties to lead evidence.

(2.) The plaintiff-petitioner filed the suit in November 1985, in which there was a report of refusal dated 28th November, 1985. On the basis of the said report of refusal, ex parte proceedings were taken and ultimately, ex parte decree was passed on 27th February, 1986. The application for setting aside the ex parte decree was filed on 9th May, 1986, alleging that she was never served in the suit and that the ex parte proceedings were taken illegally and the ex parte decree was liable to be set aside. The application was contested on behalf of the plaintiff-decree-holder. The trial Court after framing the issues and recording the evidence came to the conclusion that the application was barred by time, as the defendant had the knowledge of the suit much earlier and, therefore, there was no sufficient cause for setting aside the decree. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that there was no reason for the defendant to allow the suit to proceed ex parte, if these would have been served there. As regards the limitation, the lower appellate Court found that though the application was beyond limitation, yet in the present case, it had been established by Smt. Paramjit Kaur and Jaswinder Singh that there were sufficient grounds to set aside the ex parte decree dated 27th February, 1986, because the report of refusal submitted by the process-server which resulted in the order dated 16th December, 1985, vide which they were proceeded against ex parte did not inspire any confidence. They further proved that they acquired knowledge about the existence of the decree dated 27th February, 1986, for the first time on 8th May, 1986 when Smt. Joginder Kaur made proclamation openly in this regard near the house of Smt. Paramjit Kaur. As a result of this findings, the application for setting aside the ex parte decree was allowed.

(3.) The learned counsel for the petitioner submitted that as per the statement of A.W. 1 Smt. Paramjit Kaur, she admitted that she know about the suit when she filed reply to the proceedings under Section 145 of the Code of Criminal Procedure, in December, 1985. According to the learned counsel, the said statement has not been taken into consideration by the learned Additional District Judge. In view of that statement, argued the learned counsel, the application was barred by time. The view taken by the lower appellate Court in this behalf was wholly wrong and misconceived. In support of the contention, the learned counsel relied upon Nirkewal Dass v. Mahant Ram Roop,1986 89 PunLR 242and Shankar v. Ramji Lal,1986 PunLR 58