MUNNA ALIAS RADHAKRISHAN Vs. JITENDRA KUMAR SURANA

JUDGEMENT

(1.) BRIEF facts of the case are that a suit was filed by the plaintiff (Padmawati) for rent and eviction against the defendant (Ram Chandra) on 12. 12. 67 on 5. 9. 68, defendant Ram Chandra filed written statement and denied the allegation of plaintiff and stated that the defendant is owner of the property in question. Since Ram Chandra defendant died on 12. 7. 73, his legal representatives were taken on record on 16. 1. 75.

(2.) THE suit was dismissed in default on 11. 7. 79 and same was restored on 29. 7. 80 and after restoration the suit was transferred to AMJM No. 3, Jaipur City on 29. 4. 81. Again the case was transferred to AMJM No. 7, Jaipur City from AMJM No. 3, Jaipur City on 20. 12. 82. During the pendency of the suit, plaintiff Smt. Padmawati also died on 21. 12. 81 and her legal representatives were taken on record on 19. 3. 82.

(3.) AS submitted by the learned counsel for the petitioner that he came to know about the ex parte decree was filed on 5. 4. 97. Thus, within the prescribed limitation of 30 days, the petitioner filed application for setting aside the ex parte decree. Therefore, the application under section 5 to explain the delay is not required to be filed along with the application and the trial court as well as the appellate court have seriously erred not to consider this fact that the limitation be counted from the date of knowledge and immediately after the date of knowledge i. e. within the period of 30 days, the petitioner filed the application.