SURAJBHAN Vs. LAXMI NARAYAN

JUDGEMENT

(1.) - The revision petition has been filed by the defendant- petitioner challenging the order passed by the learned lower appellate court dated 27.7.1995 dismissing the appeal filed by the defendant against the order passed by the trial court dated 20.3.1986 whereby the application dated 16.7.1982 filed under Order 9 Rule 13 C.P.C. by the defendant-petitioner for setting aside ex parte decree dated 5.2.1981 has been dismissed.

(2.) The learned counsel for the defendant-petitioner has submitted that the learned courts below erred in holding that the defendant-petitioner had been served after the proceedings were re-started after the decision of the revision petition No. 133/1973 filed before the High Court was decided on 10.1.1978. It has come on record that after the decision of the revision petition No. 133/1973 dated 10.1.1978 the file was received by the learned trial court on 24.1.1979. On the said date the counsel of all the parties were present. Thereafter on 3.5.1979 the issues were framed in the presence of the parties and next date fixed on 9.7.1979. Subsequently the case was transferred by the order of the District Judge to the court of AMJM, Alwar before the next date i.e. 9.7.1979. Upon the aforesaid transfer the defendant did not appear in the transferee court and as such the notice was ordered to be issued to the defendant. The plaintiff, however, appeared on 19.11.1979 one of the defendant Prabhu appeared but thereafter even defendant Prabhu failed to appear before the learned trial court. Consequently on 15.2.1979 the learned trial court ordered the proceedings against the defendant Prabhu to proceed ex parte. Two more dates were fixed. On 29.9.1980 it was recorded in the order sheet that the notices of defendant Ajayab Singh have been served. But he had not appeared hence the case was ordered to proceed ex parte against the defendant Ajayab Singh. On 26.11.1980 the court ordered that the defendants No. 3, 5, 6 and 7 be served also through their counsel Shri Ramdhan Advocate. On 15.12.1980 it was recorded that the notices have been served on Shri Ramdhan Advocate counsel for the defendant-petitioner but he was not present and the case was posted on 17.1.1981. Shri Ramdhan Advocate counsel for the defendant- petitioners did not appear despite the service of notices and the case was called several times as such it was ordered for the suit to proceed exparte against the defendant-petitioners also. The learned trial court after recording the evidence of the plaintiff decreed the suit on 5.2.1981.

(3.) After the aforesaid suit was decreed on 5.2.1981 the defendant moved an application on 16.7.1982 under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. The learned trial court held that there was no sufficient cause for setting aside the ex parte decree dated 5.2.1981. It also held that the application moved on 16.7.1982 under Order 9 Rule 13 C.P.C. had been filed beyond the period of limitation provided for an application under Order 9 Rule 13 Civil Procedure Code. The learned trial court was of the view that the service on Shri Ramdhan Advocate the counsel for the defendant-petitioners was sufficient and consequently dismissed the application.