MOHINDER KUMAR SHARMA Vs. RAI SINGH

JUDGEMENT

(1.) Cm No. 24797-CII of 2015

(2.) It is the contention of the learned Senior Counsel for the petitioner that the respondent-tenant was proceeded against ex parte and the decree was passed on 22.11.2012, whereas, the present application has been moved on 06.05.2013 which is much beyond the period of 30 days as prescribed in Article 123 of the Indian Limitation Act, 1963. He contends that the Courts below has not considered the said aspect and has totally ignored the same and brushed aside the assertion by merely observing that the Limitation Act is not applicable. He contends that the said finding of the Court below is not sustainable. That apart, he contends that as per Clause B of para 2 of the application for setting aside the ex parte order, the service of the summons upon the respondent-tenant has been admitted as he is not disputing the said fact by stating that by mistake, he did not appear before the Court as he was of the opinion that a similar title eviction petition No.11 of 2011 which was filed by the petitioner and was decided on 19.04.2012, the said petition was relatable to the same. He, thus, contends that merely because the summons were not accompanied along with the copy of the plaint, cannot be a ground for holding that he has not been duly served on the ground that it would merely be an irregularity as per second proviso to Order 9, Rule 13 of CPC.

(3.) Reliance has also been placed on the judgment of this Court in Baldev Singh v. Jiwan Kumar Pathak, 2004 4 RCR(Civ) 719 and Gurmeet Chand & another v. Ajit Singh,2013 2 CCC 260 (P&H), to contend that it is a mere irregularity and not an illegality which would amount to non-service upon the respondent. Reliance has also been placed upon the judgment of the Hon'ble Supreme Court in Parimal v. Veena @ Bharti, 2011 2 RCR(Civ) 155, to contend that unless sufficient cause has been shown by the party, the ex parte proceedings initiated against him could not have been set aside. His further contention is that the second proviso to Order 9, Rule 13 CPC being mandatory has to be looked into in strict terms and cannot be brushed aside by the Court in a casual manner. He, thus, contends that the present revision be allowed by setting aside the impugned order.