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2001 DIGILAW 1541 (RAJ)

Gurubux Singh v. State of Raj.

2001-09-21

H.S.PUNIA

body2001
PUNIA, Member.–This is a revision petition filed u/S. 230 of the Rajasthan Tenancy Act, 1955 against the judgment dated 17.6.2000 passed by the Revenue Appellate Authority Sriganganagar by which the appeal filed by the petitioners was dismissed. (2). Briefly stated, the fact relevant for decision of this revision are that non-petitioner No. 2 Maha Singh filed a suit u/S. 88, 188, 92A and 53 of the Rajasthan Tenancy Act against the petitioners and non-petitioner Nos. 1 and 3 in which ex parte proceedings were taken against the defendant No. 1 to 5. It is revealed that service of summons upon the defendant No. 2 was effected personally and service of summons on other defendants was effected by affixing a copy of summons on their residential house and ultimately ex parte preliminary decree was passed by the judgment dated 12.1,99. Thereafter petitioners moved an application under Order 9 Rule 13 CPC on 22.2.99 and it was alleged that no notice or summon was ever served upon them. Petitioners are living separately, but summons for all the defendants were issued on the same address and none of the defendants was served personally. Service of summons has been shown by affixing the copy of summon on their residence which can only be effected under the orders of the court, but the legal procedure has not been adopted. Affidavits of petitioners were also produced in support of their application. (3). Non-petitioner No. 2 (Plaintiff) opposed the application by way of reply and it was stated that the service of summons on defendant was effected as per rules. The defendants refused to take notice deliberately and the application has been filed to prolong the case. It was also stated that after passing of the preliminary decree, final decree has also been passed. After hearing both the parties the learned trial court rejected the application of petitioners being time barred and also on the ground that they failed to prove the facts contained in their application. Aggrieved by the order of the learned trial court petitioners filed an appeal before the learned Revenue Appellate Authority which was dismissed by the judgment dated 17.6.2000. Hence this revision petition. (4). Learned counsel for the petitioners has vehemently argued that petitioners filed an application before the trial Court when they came to know of the ex parte judgment passed by the learned trial Court. Hence this revision petition. (4). Learned counsel for the petitioners has vehemently argued that petitioners filed an application before the trial Court when they came to know of the ex parte judgment passed by the learned trial Court. Application under Section 5 of Limitation Act is not required when limitation is claimed on the basis of knowledge of ex parte decree and reliance has been placed on 1990 RRD page 534. Mr. Pandya then contended that petitioners have not been served with the summons personally and the service of summons is said to be effected by affixing the copy of summons on their residence, therefore, there was no proper service of summons on the defendants and in these circumstances the learned trial Court should have,set aside the ex parte decree passed against them. The learned appellate court also failed to consider the fact of service of summons on the defendants. The appeal preferred b y the petitioners was within limitation from the date of knowledge of the ex parte judgment and decree and in such a case application for condoning the delay was not necessary, hence the order of the learned appellate court is erroneous. Reliance has been placed on L.Rs. of Baijnath vs. State of Rajasthan (1). (5). The learned counsel for the non-petitioners has contended that the preliminary decree was passed on 12.1.99. and thereafter final decree was also passed on 3.2.99, but the non-petitioners filed an appeal before Revenue Appellate Authority on 22.12.99 which was time barred. The petitioners did not file any application u/S. 5 of the Limitation Act to condone the delay in filing the said appeal therefore, the learned appellate court was right in dismissing the appeal being time barred. It is also submitted that personal service was effected on the defendant No. 2 and other defendants were not available at their residence and the copy of summons was affixed on, their house in which ordinarily they resided and as such there was proper service of summons on the defendants and it could not be a ground for setting aside the ex parte- decree. (6). I have considered the arguments advanced on behalf of both the parties and perused the record. (6). I have considered the arguments advanced on behalf of both the parties and perused the record. A perusal of the record of the trial Court shows that the defendant Ajayab Singh was served with summons personally, but he did not appear before the learned trial Court and ex parte proceedings were taken against him. Summons issued for other defendants were not served upon `them personally and the report of the process server reveals that defendant Gurubax Singh and Kuldeep Singh were not present and a copy of the summon was affixed on their house and this report bears signature of two witnesses, but the parentage and addresses of these two witnesses had not been mentioned. The report on summons issued for other defendants Darshan Singh and Jogendra Singh bears report of the, process server to the effect that they refused to receive copy of the summons and one copy of summons was affixed on their house. The report of the process serve also bears signature of two witnesses namely, Gurpreet Singh and Bhupendra Singh but the parentage and addresses of these two witnesses have not been mentioned. The learned trial Court did not pass any order under Order 5 Rule 20 CPC for substituted service, therefore, the service of summons on defendant Gurbax Singh and Kuldeep Singh, by affixing copy of summons on their house was not in accordance with the law. The learned trial Court should have also ordered for simultaneous issue of summons by post, in addition to personal service. Now, remains the service of summons on other two defendants Darshan Singh and Jogendra Singh and the report of the process server reveals that the copies of summons affixed on their houses said to have been effected before the two witnesses named below but parentage and full addresses of these two witnesses was not given in the report of the process server, therefore, service of summon of affixing copy of summons on their houses was not in accordance with the provisions contained in Order 5 Rule 17 CPC. But the learned trial Court as well as the appellate court have failed to consider this aspect of the legal provisions and the appeal preferred by the petitioners was rejected on the\sole ground that it was time barred. But the learned trial Court as well as the appellate court have failed to consider this aspect of the legal provisions and the appeal preferred by the petitioners was rejected on the\sole ground that it was time barred. In the result, personal service of summon was effected only on defendant Ajayab Singh and he is not petitioner before this court. Service of summon on other defendants, who are petitioners in this revision petition, was not in accordance with the law. (7). Both the courts below have given concurrent findings. that the application moved by the petitioners under Order 9 Rule 13 C.P.C. was barred by limitation and the petitioners did not move application under Section 5 of the Limitation Act to condone the delay, which was necessary. In my opinion the trial Court as well as the appellate court erred in holding that the application under Section 5 of the Limitation Act for condonation of delay was sine qua non for entertaining an application under Order 9 Rule 13 when the period of limitation was claimed from the date of knowledge. It was specifically pleaded that the application is within the period of limitation from the date of knowledge i.e. from 20.2.1999, when non-petitioner Maha Singh told petitioner Jogender Singh in the village that they have obtained the decree. As discussed above, the service of summons on non-petitioner was not effected in accordance with legal provisions and ex-parte decree was passed against the petitioners. In such a situation the period of limitation for filing an application under Order 9 Rule 13 C.P.C. will start from the date of knowledge of the decree and it could not be held that application filed by petitioner was barred by limitation. There was no need for the petitioners to submit a separate application under Section 5 of the Indian Limitation Act, and this view is fortified by the decision in case of L.Rs of Baij Nath vs. State of Rajasthan (supra). Therefore, the trial Court committed error and illegality in rejecting the application of the petitioners as barred by limitation and the appellate court has also erred in upholding the order of the trial court. (8). In view of the above discussion, this revision petition is allowed. Therefore, the trial Court committed error and illegality in rejecting the application of the petitioners as barred by limitation and the appellate court has also erred in upholding the order of the trial court. (8). In view of the above discussion, this revision petition is allowed. The impugned judgment dated 17.6.2000 passed by the Revenue Appellate Authority and the order dated 15.12.1999 of the trial Court are set aside and the application of the petitioners under Order 9 Rule 13 of C.P.C. is accepted and the ex-parte decree dated 12.1.1999 is also set aside. Further, the trial Court is directed to restore the suit No.46/90 and proceed with the trial of the suit in accordance with law. Pronounced in the open Court.