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2005 DIGILAW 1061 (MP)

Ramdas v. Amrita

2005-10-13

K.K.LAHOTI

body2005
ORDER 1. Applicant has assailed order dated 23.3.2005 passed by First Civil Judge Class-II, Burhanpur in Civil Miscellaneous Case No. 12/2000 by which an application filed by respondent under Order 9 Rule 13 read with section 151 of CPC has been allowed. 2. Facts of the case are that:- a suit was filed by Ramdas against respondent for declaration, which was registered as Civil Suit No. 127-A/1984. In the said suit, respondent was served and filed written statement. As the burden of proof was on the respondent, the trial Court directed respondent to lead evidence. Several adjournments were sought and ultimately on 24.1.1989 counsel for respondent pleaded no instructions in the case and the case proceeded ex parte. Thereafter, the petitioner's evidence was recorded and an ex parte judgment and decree was passed against respondent on 25.4.1989. Thereafter, on 16.8.2000 respondent filed an application under Order 9 Rule 13 of CPC for setting aside ex parte judgment and decree dated 25.4.1989. This application was filed on the ground that the counsel for the respondent assured her that her presence is not necessary and as and when the presence would be required, she will be informed. The respondent's son was attending the case. The respondent remained in belief that her counsel shall inform her. On 6.8.2000 and on 8.8.2000, when the applicant obtained copies of the khasra entries from Patwari, she became aware that the revenue entires are against her. Thereafter, she enquired and got the knowledge that ex parte judgment and decree was passed against her. On the aforesaid ground, the application was filed. 3. The applicant contested the application on the ground that the respondent was represented by Shri Vikhe, Advocate who sought various adjournments from 28.10.1986 to 24.1.1989. Lastly on 24.1.1989 Shri Vikhe, Advocate pleaded no instructions from the side of respondent. On the said date, the respondent was also absent. Thereafter, the evidence of plaintiff was recorded and ex parte judgment and decree was passed. It is submitted by the applicant that the respondent was informed and she was aware about the proceedings of the case. 4. The trial Court recorded the evidence in which the respondent appeared herself. She stated in her statement that she was sick and could not attend the case. Thereafter, an ex parte decree was passed against her. It is submitted by the applicant that the respondent was informed and she was aware about the proceedings of the case. 4. The trial Court recorded the evidence in which the respondent appeared herself. She stated in her statement that she was sick and could not attend the case. Thereafter, an ex parte decree was passed against her. This was informed by Patwari that her name has been deleted from the khasra entries. She has also admitted in her statement that her son was attending the Court's hearing. She is not aware about the fact of the case. No document in respect of ailment of respondent was filed though she stated that she remained sick for a period of six months. The trial Court considering the fact that the respondent is an old illiterate lady and is not knowing the legal procedure. On the aforesaid ground the trial Court set aside ex parte judgment and decree which order is assailed in this revision. 5. Learned counsel appearing for the applicant submits that (1) the limitation shall commence from date of decree and not from the date of knowledge as summon was duly served on the respondent. Reliance is placed to a Single Bench judgment of this Court in Rambhau v. Bank of Maharashtra [1991 (I) MPWN 233] and Ghanshyamdas v. Firm M/s. Keshavdas Chhannulal [1991 (I) MPWN 107]. (2) That the respondent ought to have been vigilant in respect of the proceedings of the case and the application has been filed after long lapse of eleven years and four months which delay ought not to have been ignored by the Court below without filing any application under section 5 of the Limitation Act. 6. Learned counsel appearing for respondent No.1 supported the order and submitted that it was the mistake on the part of the counsel for which the client should not suffer. The respondent is illiterate and rustic villager and has been rightly treated by the trial Court so and no interference is needed in this revision. Reliance is placed to a Single Bench judgment of this Court in Smt. Benibai v. Smt. Champabai [ 1996 JLJ 436 = AIR 1996 MP 243 ]. 7. The respondent is illiterate and rustic villager and has been rightly treated by the trial Court so and no interference is needed in this revision. Reliance is placed to a Single Bench judgment of this Court in Smt. Benibai v. Smt. Champabai [ 1996 JLJ 436 = AIR 1996 MP 243 ]. 7. Learned counsel for respondent has also raised an objection that this revision is not maintainable against the impugned order as it does not fall within the purview of section 115 of CPC and it may be dismissed. That because of the mistake of the counsel who pleaded no instructions in the case, the respondent ought not to have been penalised. There was no fault on the part of respondent who engaged an Advocate on her behalf. Reliance is placed to the judgment of apex Court in Tahil Ram lssardas Sadarangani and others v. Ramchand lssardas Sadarangani and another [ AIR 1993 SC 1182 ] and submitted that this revision may be dismissed. 8. To appreciate rival contention of the parties firstly it may be seen whether this revision is maintainable or not. Section 115 of CPC as amended vide effect from 1.7.2002 pel1ains to the jurisdiction of the Court in respect of those revisions where the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. In this case, if this revision is allowed, it will final dispose of proceedings under Order 9 Rule 13 of CPC. Apart from this, under Order 43 Rule 1 of CPC there is bar of challenging the impugned order by filing appeal. In these circumstances, the order is revisable and this revision is entertainable. 9. So far as the second contention of the parties that the limitation for filing an application under Order 9 Rule 13 of CPC was thirty days from the date of decree as the summons were served in the matter. In this case, it is not in dispute that the respondent was duly served and she was represented by a counsel. She filed written statement in the case and when the case was fixed for recording the evidence of the respondent, the counsel for respondent took several adjournments for a considerable long period of near about two years and three months. This shows that the respondent remained negligent in attending the case. She filed written statement in the case and when the case was fixed for recording the evidence of the respondent, the counsel for respondent took several adjournments for a considerable long period of near about two years and three months. This shows that the respondent remained negligent in attending the case. In this case, the counsel who was appearing on behalf of respondent was not examined by the respondent in the trial Court who was in a position to explain the circumstances in which the applicant could not be informed, but in absence of this evidence, it will be presumed that the respondent was having knowledge about the proceedings of the case and the counsel appearing on her behalf was having instructions from respondent to seek adjournments for the evidence. The counsel sought various adjournments on the instructions of the respondent and case remained pending for a considerable long period of near about twenty-seven months for recording evidence on behalf of respondent. . 10. In these circumstances, the limitation for filing application shall be thirty days from the date of ex parte judgment and decree. If the respondent was having sufficient cause for not filing the application within a period of thirty days, the respondent ought to have filed an application under section 5 of Limitation Act for explaining the delay for non-filing of the application within the prescribed period of limitation. In the case admittedly no such application was filed by the respondent. The application was apparently barred by time and without condonation of delay such application ought not to have been entertained by the trial Court. Now the third question arises that the illiteracy and rusticness of the respondent may be a ground for setting aside ex parte order. It is not in dispute that if a illiterate village woman is applying for setting aside ex parte order, a lenient view should be taken but the facts of the present case are entirely different. The respondent was duly served and she filed written statement. The dispute was in respect of property. Her son was regularly attending the case but when the case was fixed for recording the evidence of the respondent, she conveniently not appeared before the trial Court. Her case was adjourned for a considerable long period of twenty-seven months for her evidence. The respondent was duly served and she filed written statement. The dispute was in respect of property. Her son was regularly attending the case but when the case was fixed for recording the evidence of the respondent, she conveniently not appeared before the trial Court. Her case was adjourned for a considerable long period of twenty-seven months for her evidence. Thereafter, the counsel pleaded no instructions and the ex parte judgment and decree was passed on 25.4.1989. Even thereafter, the respondent or her son had not contacted to the counsel to know about the case. A period of eleven years and four months is not a small period. During this period, the respondent ought to have approached to the counsel to know the progress of the case and in absence of further explanation after such a long period the explanation submitted by the respondent that she became aware about the decision of the case after receiving copy of khasra entries from Patwari cannot be accepted. Though the learned counsel appearing for respondents relied on a judgment of the apex Court in Tahil Ram Issardas Sadarangani and others v. Ramchand Issardas Sadarangani and another (supra) but the facts of the aforesaid case are entirely different. In that case, a writ petition was filed which was dismissed in default of appearance of the counsel on 15.3.1974. The application for restoration was filed, which was also dismissed on 24.4.1974. Appeal preferred against the aforesaid order was also dismissed by the Division Bench on 5.8.1974. In those circumstances, the apex Court found that in the writ petition the personal presence of the party is not necessary and if the counsel without intimating to the client had not appeared in the case, a sufficient cause is made out for restoration of writ petition. In that case, the application was immediately filed for restoration of writ petition, but the facts of the present case are entirely different. In this case the application under Order 9 Rule 13 of CPC was filed after long lapse of eleven years and four months and after such lapse of period, the explanation submitted by the respondent cannot be accepted that she was fully defendent on he counsel. 11. In this case the application under Order 9 Rule 13 of CPC was filed after long lapse of eleven years and four months and after such lapse of period, the explanation submitted by the respondent cannot be accepted that she was fully defendent on he counsel. 11. In the aforesaid circumstances, the trial Court erred in entertaining the aforesaid application after more than eleven years without any application under section 5 of the Limitation Act and without a sufficient cause allowed the application under Order 9 Rule 13 of CPC. In these circumstances, this revision is allowed. The order passed by the trial Court dated 23.3.2005 is hereby set aside and the application filed by the respondent under Order 9 Rule 13 of CPC is hereby rejected. No order as to costs.