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2000 DIGILAW 218 (PNJ)

Amarjit Singh And Anr. v. Balwant Singh

2000-02-22

V.M.JAIN

body2000
Judgment V.M.Jain, J. 1. This order shall dispose of the above mentioned 3 revision petitions, as the common questions of facts and law arise in these petitions. For the purpose of convenience, the facts of C.R. 1069 of 1999 may be noticed. 2. Amarjit Singh and another filed a suit for permanent injunction against Balwant Singh. In the said suit Balwant Singh appeared through his counsel in response to the notice on 9.5.1994 before the trial court and the case was adjourned to 25.5.1994 for written statement on which date the case was adjourned to 9.6.1994 for filing written statement and the written statement was not filed and at the request of the counsel, the case was adjourned to 23.7.1994 for filing written statement and reply to the injunction application. On 23.7.1994 neither the defendant nor his counsel appeared before the trial court and accordingly the defendant was proceeded against ex parte and the case was adjourned to 11.11.1994 for ex parte evidence of the plaintiffs. Finally, after recording the ex parte evidence of the plaintiffs, the learned trial Court decreed the suit ex parte on 19.4.1995. After more than two years i.e. on 13.6.1997, the defendant filed an application under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree dated 19.4.1995, inter alia on the ground that the said judgment and decree were liable to be set aside as the plaintiffs had played a fraud upon the defendant. It was alleged that after the suit was instituted, the parties had entered into compromise on 15.6.1994. Photocopy of the said compromise was annexed with the application, alleging that the original was in the police post. It was alleged that after the compromise the plaintiffs told the defendant that he need not go to Court as he undertook to withdraw the suit. It was alleged that it was only when the plaintiffs refused to pay the rent to the defendant that he served a notice to them and in reply to the notice, the plaintiffs stated that there was no relationship of landlord and tenant as they had obtained judgment and decree dated 19.4.1995 from the trial court. It was alleged that it was only thereafter that the defendant came to know about the existence of the said judgment and decree and accordingly the application for setting aside the ex parte order was filed. It was alleged that it was only thereafter that the defendant came to know about the existence of the said judgment and decree and accordingly the application for setting aside the ex parte order was filed. The said application was contested by the plaintiffs by filing written reply, alleging therein that the application was hopelessly barred by time. It was denied that any compromise was arrived at between the parties as alleged. Both the sides led evidence in support of their respective contentions. The learned trial court after hearing both sides and after perusing the record set aside the ex parte judgment and decree dated 19.4.1995 vide order dated 15.1.1999. It is against this order of the trial court that the revision petition has been filed by the plaintiffs. 3. Notice of motion was issued. Counsel for the parties have been heard. 4. The learned counsel for the plaintiffs-petitioners has submitted that even though the application under Order 9 Rule 13 was barred by time by more than 2 years, yet the learned trial Court had not adverted to this fact and had held that the application was within time form the date of knowledge. He has submitted that under Article 123 of the Limitation Act the limitation was 30 days from the date of decree in those cases where the summons or notice had been duly served upon the defendants and it is 30 days from the date of knowledge where the summons or notice had not been duly served. He has submitted that in the present case admittedly the defendant was duly served and had appeared in the court through his counsel and had sought time to file written statement but inspite of 3 adjournments, no written statement was filed and ultimately no one had appeared on behalf of the defendant and as such the limitation for filing the application under Order 9 Rule 13 CPC would be 30 days from the date of decree. Reliance has been placed on A.I.R. 1979 Madras 36 International Cotton Traders, Tatabad, Coimba-tore v. P. Narqyanaswami, and A.I.R. 1925 Bombay 444 Ghanshiram Baluram v. Misrilal Chunilal. 5. After hearing the learned counsel for the parties and perusing the record, I find force in the various submissions made by the learned counsel for the petitioners. Article 123 of the Limitation Act reads as under:- XXX XXX XXX XXX XXX XXX 123. 5. After hearing the learned counsel for the parties and perusing the record, I find force in the various submissions made by the learned counsel for the petitioners. Article 123 of the Limitation Act reads as under:- XXX XXX XXX XXX XXX XXX 123. To set aside a decree Thirty days The date of the decree or passed ex parte or to rehear where the summons or notice an appeal decreed or heard was not duly served, when ex parte. the applicant had knowledge of the decree. xxx xxx xxx xxx xxx xxx 6 From the perusal of the above, it would be clear that the limitation is 30 days to set aside an ex parte decree and the limitation begins to run from the date of the decree. However, in those cases where the summons or notice had not been duly served, the limitation begins to run from the date when the applicant had the knowledge of the decree. In the present case the defendant had been duly served and had appeared before the trial court through his counsel and had sought time to file written statement. Under these circumstances, the limitation would begin to run from the date of the decree and not from the date of knowledge. The learned trial Court committed an illegality by proceeding with the assumption that the limitation would start from the date of knowledge. In A.I.R. 1979 Madras 36 (supra), it was held by a Division Bench of the Madras High Court that under Article 123 of the Limitation Act the starting points of limitation are two. One is the date of the decree and the other is the date of the knowledge of the decree. With reference to the second, the condition to be satisfied is that no summons or notice should have been duly served. Thus, it is clear that a person applying for setting aside an ex parte decree can claim the period of limitation to commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases, limitation commences from the date of decree itself. 7. As referred to above, in the present case the application under Order 9 Rule 13 was filed by the defendant after a lapse of more than 2 years. In other cases, limitation commences from the date of decree itself. 7. As referred to above, in the present case the application under Order 9 Rule 13 was filed by the defendant after a lapse of more than 2 years. Nothing has come on record to explain the circumstances under which the applicant-defendant had not filed the application for setting aside the ex parte decree within the period of limitation. The plea taken by the applicant-defendant that some compromise was arrived at between the parties in June, 1994 and the plaintiffs had agreed to withdraw the suit, in my opinion, cannot be accepted, in the absence of the written compromise available on record. However, there is nothing on the record to show that any such written compromise was produced or proved on the record. That being so, the mere assertion of the defendant in this regard cannot be accepted. The learned trial court committed an illegality in setting aside the ex parte decree by observing that even subsequently, in the proceedings under Section 107/151, some compromise was arrived at between the parties. In my opinion, the subsequent compromise, if any, would be of no relevance so far as the present appli cation under Order 9 Rule 13 is concerned. The learned trial court also committed an illegality in observing that if the defendant was not appearing on 23.7.1994, the Court should have served a notice to the counsel to appear in the court so that one opportunity could be granted to the defendant to file the written statement. There is no such requirement of law. 8. In view of the detailed discussion above, in my opinion, the learned trial court committed illegality in exercising its jurisdiction while setting aside the ex parte judgement and decree dated 19.4.1995. Accordingly, the present revision petition is allowed and the order dated 15.1.1999 passed by the trial court is set aside and the application filed by the defendant-applicant under Order 9 Rule 13 CPC is dismissed with no order as to costs.