ORDER U.C. Srivastava, J. - This petition is directed against the revisional order passed by the court of the District Judge in a revision under section 25 of the Provincial Small Cause Courts Act preferred against the judgment and decree passed by the court of Judge Small Cause dismissing the application of the defendant under Order 9, Rule 13, Civil Procedure Code. 2. The plaintiffs filed a suit for ejectment and arrears of rent against the defendants on certain grounds. Defendants 1 to 5 filed separate statement in which it was pleaded that they are tenants of the shop in dispute and defendant No. 6 was in possession and was tenant in his own right. 22nd February, 1973 was fixed for framing of issues and the suit was transferred to the Judge Small Causes on 1st January, 1973. From 22nd February,1973 to 19th January,1975 the case was adjourned on various dates. On 20th January, 1975 proceedings for appointment of legal representatives of defendant No. 2 started which continued upto 15th October, 1976 when the application was dismissed. The case was fixed on December 17, 1976 for hearing on which date the parties did not turn-up, but it was noted that they were not informed and the case was fixed on 4th February, 1977, on which date the plaintiffs were present, but the defendants were absent. The courts were closed due to Ravidas Jyanti, as such 14th February, 1977 was fixed in the case and it was directed that the parties be informed. On 14th February, 1977 plaintiffs were present, but the defendants were absent and the case was adjourned to 15th April,1977 on which date the Presiding Officer was on leave and the case was adjourned to 5th May, 1977. On this date ex parte evidence was recorded and 10th May, 1977 was fixed for judgment. On 10th May, 1977 the suit was decreed ex parte and thereafter on 28th July, 1977 defendant No. 6 moved an application for setting aside the said ex parte decree purporting to be under Order 9, Rule 13, Civil Procedure Code with the allegation that he learnt about the decree on 13th July, 1977 when the Amin went to the spot for the delivery possession. 3.
3. The application for setting aside the ex parte decree was opposed and trial court came to the conclusion that the petitioner has failed to make a case for setting aside ex parte decree and the delay has not been sufficiently explained in filing the application beyond 30 days and held that it deserves to be rejected, consequently it was rejected. 4. Against the order passed by the trial court the opposite parties filed revision application under section 25 of Small Cause Courts. Act which was slowed by the District Judge who was of the view that the defendant was not at fault as he had no notice of various dates fixed in the case and as such he succeed in making out a case for condonation of delay. The District Judge placed reliance on the case Gobardhan Ram Bisheshwar Ram v. Benarsi Ram, AIR 1957 Allahabad 805. 5. On behalf of the petitioners it was contended that so far as factual position is concerned the correct state of affairs was not looked into by the appellate court and further Article 123 of the Limitation Act was applicable and the application was thus clearly beyond time and the District Judge committed a manifest error of law in entertaining the said application and allowing the revision application. So far as the statement of fact is concerned re District Judge looked into it, though the trial court observed that on one particular date the intimation regarding notice was struck out in the order which was not taken notice of. Whatever may be the position, it appears from narration of facts by the District Judge that the petitioner and opposite parties or their counsel had no knowledge of the subsequent dates; this statement appears to be correct as nothing contrary could to pointed out by the learned counsel appearing for the other party. So far as Article 123 of Limitation Act is concerned the application for setting aside ex parte decree was moved some 14 days thereafter and the alleged date of knowledge has not been questioned as such.
So far as Article 123 of Limitation Act is concerned the application for setting aside ex parte decree was moved some 14 days thereafter and the alleged date of knowledge has not been questioned as such. In view of Article 123 of Limitation Act which is analogous to Article 164 of the said Act, the date of knowledge would be that when the opposite parties, who in fact were not aware of the date in the case as notice for the same was not served upon them became aware of the same the revisional court has taken into consideration this fact and arrived at a particular finding. The finding so arrived at is a finding of fact and no case for interference with the same is made out and the District Judge was satisfied that the application was moved within the period of limitation from the date of knowledge and nothing cogent has been brought by the learned counsel from which it could be said that he has made some misstatement of fact. As such the writ petition deserves to be dismissed. Although the writ petition is dismissed, yet the opposite parties are directed to pay a sum of Rs. 250/- as costs to the petitioners who have been driven to this litigation for years and have to suffer expenses and inconvenience. It is expected that the trial court will decide the case within three months and whether the parties will maintain status quo, it is within the domain of the trial court which may like or may not to pass any order in this behalf within a period of three months. 6. With the above observations the writ petition is dismissed, but the opposite parties will pay a sum of Rs. 250/- as costs to the petitioner or his counsel appearing in this case within a period of three weeks, from today. Petition dismissed