BARJI BAI AND ORS. Vs. LAXMAN

JUDGEMENT

(1.) THE present revision petition has been filed by the appellants, who were the defendants in a suit filed for specific performance of the contract and permanent injunction, against the order dated 04.10.2013 passed by the learned Additional District Judge No. 3, Chittorgarh dismissing the application filed under Section 5 of the Limitation Act and as a consequence, the first appeal filed by the defendants was also dismissed.

(2.) THE learned First Appellate Court of Additional District Judge No. 3, Chittorgarh has assigned the following reasons for rejection of the application of the defendants filed under Section 5 of the Limitation Act, which are as under: - -

(3.) THE learned counsel Mr. Ashwini Kumar Babel appearing for the petitioners -defendants urged that since the summons were served upon the defendants without accompanying the copy of the plaint, therefore, service of summons cannot be treated as sufficient service on the defendants as per Order 5 Rule 2 of the Code of Civil Procedure. The learned counsel relied upon a decision of the Hon'ble Supreme Court in the case of Nahar Enterprises (M/s) v. M/s. Hyderabad Allwyn Ltd. & Anr. reported in : 2007 DNJ (SC) 686 and submitted that in the absence of service of the plaint with the summons, the learned Trial Court was not justified in decreeing the suit ex -parte against the defendants. The learned counsel also submitted that in the present case, the plaintiff had filed the suit for specific performance of the alleged Agreement to Sell of the year 1991 executed in his favour by the father and husband of the defendants, in the year 2011 and against the ex -parte decree, even the appeal preferred by the present petitioners was dismissed though that was preferred with the delay of 136 days only and for which, there were sufficient reasons mentioned by the petitioner in the application filed under Section 5 of the Limitation Act namely, lack of knowledge of passing of the ex -parte decree and late communication of the decree to the defendants.