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2002 DIGILAW 75 (HP)

MUNSHI RAM v. SURESH KUMAR

2002-03-26

M.R.VERMA

body2002
JUDGMENT M.R- Verma, J. (Oral):- This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) as directed against the order dated 28.6.2001. whereby the learned Additional district Judge has dismissed the appeal of the petitioner against the order dated 10.5.2000. passed by the learned sub Judge (I), Dharamsala. dismissng the applciaiton of the petitioner under Order 9 Rule 13 of the code for setting aside an ex-parte decree against him. 2. The brief and admitted facts leading to the presentation of the present petition are that respondent institud civil Suit No. 15 of 1992 against the petitioner and for default of appearance of the petitioner, the suit was decreed ex-parte on 29.7.1992. The petitioner moved an application under Order 9 Rule 13 of the Code for setting aside ex-parte decree alongwith an applciaiton under Section 5 of the Limitation Act for condonation of delay in filing the application for setting aside ex-parte decree on 22.6.1996. The case of the petitioner, as averred in the applications, is that the summons s issued to him at the address of his native place were not served on him and the report of the Process Server that the summons were served on him through his mother, was wrong and that the petitioner, when appeared in the execution proceedings at a later stage, came to know about the ex-parte decree which was being sought to be executed against him and. thus, it is claimed that there was sufficient cause for condonation of delay in filing the application for setting aside ex-parte decree and also for setting aside the ex-parte decree. 3. The respondent ontested the applications by averring in his reply that there was due service on the petitioner and the applications are not only frivolous but also barred by limitation and deserved to be dismissed with costs. 4. The trial Court framed the following issues: 1. Whether there are sufficient reasons to set aside ex- parte decree dated 29.7.1992. as alleged? OPA 2. Whether there are sufficient reasons to condone the delay caused in moving this application under Order 9. Rule 13 CPC ?OPA. 3. Relief. On the basis of the material brought on record by the parties, the learned sub Judge decided both the aforesaid issues against the petitioner and accordingly dismissed the applications. as alleged? OPA 2. Whether there are sufficient reasons to condone the delay caused in moving this application under Order 9. Rule 13 CPC ?OPA. 3. Relief. On the basis of the material brought on record by the parties, the learned sub Judge decided both the aforesaid issues against the petitioner and accordingly dismissed the applications. The appeal preferred by the petitioner was dismissed by the learned Addl. District Judge (I) Kangra. vide his judgment dated 28.6.2001. Hence the present revision petition. 5. I have heard the learned counsel for the parties and have also gone through the material placed on record. 6. The delay in filing an applciatron can be condocned only on a sufficient cause being shown by the party seeking such condonation. The Courts, however, have been liberal in construsing the expression "sufficient cause" provided that the delay i not intentional or deliberate and there is no gross negligence on the part of the party seeking condonation. In view of the findings of the appellate Court below, there had been no proper service of the summons of the suit on the respondent, therefore the delay in filing the application, till the petitioner acquired knowledge of the ex-parte decree, stands duly explained. However, the question which arises for consideration is whether after having acquired the knowledge of the ex-parte decree against him. the petitioner had moved the application for setting aside the ex-parte decree with due diligence or he was prevented by any sufficient cause from making such application within the reasonable time after acquiring the knowledge of the ex-parte decree. It is admitted case of the petitioner that he came to know about the ex-parte decree against him when he appeared in the execution proceedings initiated by the respondent for execution of the ex-parte decree in question. It is admitted case of the petitioner that he did appear in the execution proceedings initiated by the respondent for executing ex-parte decree against him. but he claims to be an illiterate person, hence the delay in making the application for setting aside ex-parte decree in time. The version of the petitioner that he is illiterate, and incapable of understanding the nature of the litigation, has been disbelieved by both the Courts below and rightly so. but he claims to be an illiterate person, hence the delay in making the application for setting aside ex-parte decree in time. The version of the petitioner that he is illiterate, and incapable of understanding the nature of the litigation, has been disbelieved by both the Courts below and rightly so. in view of the admissions of the petitioner himself that he is running a shop and has also contested election for the Legislative Assembly, hi view of such admissions, neither he can claim to be illiterate nor so innocent as to be incapable of acquiring knowledge despite appearance in the execution proceedings that an ex-parte decree had already been passed against him which is being sought to be executed. 7. Both the Courts have concurrently concluded on the factual aspects that the petitioner appeared in the execution proceedings on 4.9.1993 and 3.10.1993, but did not appear thereafter. Thus, having put in appearance in the execution proceedings against the ex-parte decree and having sought time for taking further steps regarding the case against him. the petitioner can be said to have the knowledge of the ex-parte decree against him on and with effect from 4.9.1993. He had. however, filed the applications for setting aside the ex-parte decree and condonation of delay-in filing such applications on 22.6.1996 and there is no reason to explain this delay of almost three years in making the applications, after having acquired the knowledge of the ex-parte decree hence there is no reason for condonation of delay or setting aside the ex-parte decree as has righlty and concurrently been held by the Courts below. 8. Evidently, this is not a case of want of exercise of jurisdiction or non exercise of the jurisdiction or illegal exercise of the jurisdiction vested in the Courts below. Hence the impugned order does not call for any interference by this Court. 9. As a result this revision petition is dismissed. CMP No.86 of 2002 10. In view of the orders passed in the revision petition, this applciation has become infructuous and is accordingly dismissed. -