LAL Vs. BAGH MASIH

JUDGEMENT

(1.) PETITIONERS who were the defendants in the suit were proceeded against ex parte and ex parte decree dated 21. 1. 1989 was passed against them. Against this judgment and decree, they preferred an appeal. Along with the appeal, they moved an application under Section 5 of the Limitation Act for condonation of delay on the ground that no notice was served on them; they never appeared before the trial Court; they never engaged a counsel and addresses mentioned in the plaint were not correct. Application on contest was declined and the appeal was held to be time barred. Ex parte judgment and decree as well as the order dismissing the application under Section 5 of the Limitation Act are being challenged in this civil revision.

(2.) AFTER hearing the learned counsel for the parties, I am of the view that the civil revision deserves to succeed. Ex parte decree was passed against the petitioners on the ground that they had engaged a counsel to appear in Court but later on, without filing the written statement, their counsel absented himself. The Court was of the view that there is nothing in the record to show that Shri R. S. Aulakh, Advocate never appeared on their behalf. I am aforesaid to accept this reasoning. Summons placed on record clearly indicate that the petitioners had not been served. No power of attorney alleged to have been executed in favour of the counsel is forthcoming on the record. In this view of the matter, it is doubtful as to whether the petitioner ever engaged a counsel or authorised him to appear in Court. So far as the delay in filing the appeal is concerned, according to the petitioners, they came to know about ex parte decree on 23. 5. 1989 on which date they moved an application for obtaining copy of the order which was delivered to them on 26. 5. 1989. The appeal was filed on the same very day. In these circumstances, I am of the view that the petitioners have been able to successfully establish on record that the delay in filing the appeal was bona fide and not deliberate.

(3.) CONSEQUENTLY, for the reasons recorded above, the civil revision is allowed. In consequence thereof ex parte judgment and decree of the trial Court is set aside. Trial Court is directed to give an opportunity to the petitioner to file written statement and thereafter decide the suit in accordance with law.