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2005 DIGILAW 2566 (RAJ)

Gyan Chand v. Rajasthan Tractor Co.

2005-09-23

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-This Miscellaneous Appeal has been preferred by the defendant-appellant against the order dated 18.03.1996 passed by the Additional District Judge No. 2, Sri Ganganagar in Civil Misc. Application No. 12/1994 whereby the learned Additional District Judge rejected the application filed by the appellant for setting aside ex parte decree dated 10.11.1986 passed in Civil Suit No. 359/1985. 2. Brief facts relevant for consideration in the present appeal are that the plaintiff -respondent Rajasthan Tractor Company filed a suit on 09.08.1985 for recovery of an amount of Rs. 26,400/-against the defendant-appellant Gyan Chand with the averments and allegations in the plaint that the defendant purchased from the plaintiff tyre-tubes of the value of Rs. 17,100/-under Bill No. 755 and 761 respectively dated 10.08.1982 and 21.08.1982 on credit and signed the credit memos; that charging of interest at the rate of 1.50% per month was also agreed; and that the defendant did not make any payment towards principal or interest despite notice. 3. From the description in the plaint, it appears that the defendant was shown to be working as a Clerk with Rajasthan State Road Transport Corporation and summons was sent at his place of work i.e. Roadways Depot, Hanumangarh Junction and original summons was returned by the process-server with the report dated 21.02.1986 that the summons and a copy of the plaint offered to the defendant were refused and hence, a copy thereof was affixed outside the Booking Office in presence of a driver Ranveer Singh but he refused to sign as witness. Accepting the service to be sufficient the learned trial Court ordered ex parte proceedings because of the absence of the defendant. It appears that in oral evidence of the plaintiff , PW-1 Ratan Lal was examined on 210.1986 and thereafter, while referring to the bills Exhibits 2 and 3 and the entries in account books of the plaintiff Exhibits 4, 5, 6, and 9 and notice Exhibit 10, the learned trial Court decreed the suit for a sum of Rs. 26,400/-and awarded interest at the rate of 12% per annum on the principal amount from the date of suit by the Judgment and decree dated 10.11.1986. 4. It appears from the record that the plaintiff levied execution of the ex parte decree dated 10.11.1986 in Execution Case No. 20/1991. 26,400/-and awarded interest at the rate of 12% per annum on the principal amount from the date of suit by the Judgment and decree dated 10.11.1986. 4. It appears from the record that the plaintiff levied execution of the ex parte decree dated 10.11.1986 in Execution Case No. 20/1991. Thereafter, an application was submitted by the defendant-appellant under Order 9 Rule 13, CPC on 21.01.1994 accompanied by an application under Section 5, Limitation Act for condonation of delay. The averments in the said application under Section 5 Limitation Act read as under: - ~bye dHkh ugha Fkk vkSj uk gh nkos ds pyus dk ^^1& ;g fd izkFkhZ dks lu&86 dh ikfjr fMxza dHkh rkehy gqqbZ izkFkhZ dks igyh nQk bl ikfjr fMxz dksbZ bye Fkk vkSj uk gh nkos esh dk bye fnukad 18-09-1983 dks gqvk blds ckn izkFkhZ vLoLFk gks x;k vkSj xqnsZ esa iFkjh gksus ds dkj.k fpfdRld ijkekZ ds vuqlkj pyus&fQjus ij Hkh jksd yxk nh x;h ftldh otg ls izkFkhZ nj[okLr h isk ugha dj ldk] vkt FkksM+h izLrq eUlw[kh fMxzk lk Bhd gksus ij nj[okLr eUlw[kh fMxzr dj jgk aA ftlds fy;s gSkFkhZ us tkucw>dj dksbZ nsjh ugha dh gSA izkFkhZ nQk&5 fe;kn dkuwu ds rgr mä fMys d.Mksu djokus dk eqLrgd gSaA u e; gyQukek isk djds vtZ gS fd mä vkosnu&i= vUrxZr vr% nj 0 nQk&5 fe;kn dkuwr /kkjk 9 fu;e 13 tk- fn- dks vUnj fe;kn rLloj Qjek;k tkosA** 5. According to the appellant, summons was never offered to him and that on the basis of a false report of refusal a decree has been obtained although no goods were purchased by him from the plaintiff nor any amount was due. According to the appellant he had no knowledge of the decree in question and for the first time he came to know about the decree on 18.09.1993 and thereafter he got unwell for kidney stone and remained confined under the medical advice and hence could not file the application earlier and now after getting well a bit, he was filing the application and there was no intentional delay. 6. The application field by the appellant was contested by the plaintiff -respondent by filing a reply on 23.04.1994. Thereafter, at the request of the appellant, the case was posted for evidence and the record of Civil Misc. 6. The application field by the appellant was contested by the plaintiff -respondent by filing a reply on 23.04.1994. Thereafter, at the request of the appellant, the case was posted for evidence and the record of Civil Misc. Application No. 12/1994 shows that specifically for the purpose of evidence of the appellant, several adjournments were granted from 13.05.1994 to 09.03.1995 when a last opportunity was extended to the appellant to produce his evidence and the next date was fixed to 20.04.1995. On that date for the appellants failure to produce any evidence, the learned Additional District Judge observed that ten adjournments had been granted for the purpose and yet the evidence was not produce and hence the evidence was closed. The appellant thereafter moved an application seeking permission to lead evidence but this prayer was declined by the order dated 211.1995. The non-applicant has examined a witness Ratan Lal on 30.08.1995 and after declining the prayer of the appellant to lead evidence, the learned Judge proceeded to hear the parties finally and rejected the application filed by the appellant by the impugned order dated 18.03.1996. 7. The learned Additional District Judge No. 2, Sri Ganganagar observed in the impugned order dated 18.03.1996 that even if all the averments of the defendant be accepted, then too he admittedly got the knowledge of the decree on 18.09.1993 and the application submitted on 21.01.1994 was not within limitation and the burden was on the defendant to establish his so-called ailment, and despite several opportunities he neither examined himself nor the concerned doctor and there was no ground to set aside the ex parte decree. Aggrieved by the order dated 18.03.1996, the defendant-appellant has preferred this appeal, 8. In pursuance to the order dated 22.07.2005 complete record of Civil Suit No. 359/1985 has been received on 08.08.2005 and the endorsement on the record shows that Part D, C and B of the record had already been weeded out by 110.1993. 9. Learned Counsel for the appellant has led much emphasis on the submission that the summons was not duly served as the alleged affixture was not witnessed nor the signatures of the alleged witness were obtained nor his particulars were mentioned and that the learned trial Court was in error in rejecting the application submitted by the appellant only on the ground of limitation without affording adequate opportunity to the appellant to lead evidence. Learned Counsel for the respondent has duly supported the order impugned. 10. Having given a thoughtful consideration to the submissions and having perused the available record, this Court is satisfied that this appeal is totally devoid of substance and deserved to be dismissed. 11. A bare look at the averments made in the application under Section 5, Limitation Act submitted by the appellant makes it clear that admittedly he got the knowledge of the decree at least on 18.09.1993 as alleged, yet the application under Order 9 Rule 13, CPC for setting aside the ex parte decree was submitted only on 21.01.1994 i.e., more than four months after the alleged date of knowledge. Article 123 of the Limitation Act provides for a period of limitation of thirty days for an application to set aside a decree passed ex parte and the time from which this period of thirty days begins to run has been provided as "the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree." 12. Even if the averments of the appellant are taken on their face value, he got the knowledge of decree on 18.09.1993 and the period of limitation for the application to set aside ex parte decree from 18.09.1993 admittedly expired on 110.1993. The application submitted by the appellant on 21.01.1994 was clearly barred by limitation by over three months form the alleged date of knowledge itself . In view of the submissions of the appellant in the application under Order 9 Rule 13, CPC and the application under Section 5, Limitation Act, it was required of the appellant to have established by cogent evidence that he was prevented by sufficient cause from moving the application within limitation. Having perused the record, this Court is satisfied that the appellant was afforded more than reasonable opportunities to lead his evidence from 13.05.1994 onwards but he failed to lead any evidence and the trial Court has rightly closed his evidence on 20.04.1995. For want of evidence on the part of the appellant, no material and no cause was available with the Court for which condonation of delay could have been considered and the learned Judge has not erred in observing that the relevant facts have not been established by any evidence. 13. For want of evidence on the part of the appellant, no material and no cause was available with the Court for which condonation of delay could have been considered and the learned Judge has not erred in observing that the relevant facts have not been established by any evidence. 13. Although the applicant has not led any evidence, yet prima facie genuineness of the cause alleged by the appellant of having fallen ill and having been under treatment may also be considered with reference to various prescription slips and pathological laboratory reports produced by the appellant on 29.02.1996 before the trial Court. Having examined the documents, this Court is satisfied that even this suggestion of the appellant of having been prevented after 18.09.1993 on account of ailment of kidney stone is a mere eye-wash. There are receipts dated 01.09.1992 from Monilek Hospital and Research Centre, Jaipur and its X-ray Clinic: another is a prescription slip dated 18.08.1992 of Adarsh Nursing Home, Sri Ganganagar; a pathological laboratory report of National X-ray and Clinical Laboratory, Padampur dated 16.08.1992; a report of Paras Diagnostic Centre, Sri Ganganagar dated 18.08.1992, a prescription of Dr. L.D. Bharadwaj dated 16.08.1992; a report of Sidana Diagnostic Laboratory, Sri Ganganagar dated 21.08.1992; and a prescription slip of one Dr. Arun Kalra dated 21.08.1992. All the aforesaid prescription slips/reports/receipts are of the months of August and September, 1992 and apparently the same have no co-relation whatsoever with the alleged date of knowledge of the decree by the appellant i.e. 18.09.1993 which comes more than one year after these prescriptions and reports. Moreover, the appellant was admittedly working as a Clerk during all this period with Rajasthan State Road Transport Corporation and it has not been even remotely suggested that he remained absent from duty during the period in question on account of any ailment. 14. In the overall facts and circumstances of the case, this Court is satisfied that no cause whatsoever has been show by the appellant what to say of sufficient cause for such inordinate delay. In these circumstances, the learned trial Court was perfectly justified in refusing to condone the delay and thereby rejecting the time barred application submitted by the appellant. 15. In these circumstances, the learned trial Court was perfectly justified in refusing to condone the delay and thereby rejecting the time barred application submitted by the appellant. 15. Learned Counsel for the appellant has attempted to argue the matter on merits by suggesting that for want of identity of the witness and his signatures in the proof of affixture, the service cannot be taken to be sufficient. Learned Counsel has referred to the decisions of the Honble Supreme Court in State of Jammu & Kashmir vs. Haji Wali Mohammad & Ors., AIR 1972 SC 2538 and Sushil Kumar Sabharwal vs. Gurpreet Singh & Ors.: AIR 2002 SC 2370 . However, the submissions so made by the learned Counsel for the appellant are not apposite to facts of the case nor to the questions involved. 16. In the case of Haji Wali Mohammad (Supra), notice under the Municipal Act was required by virtue of Section 239 of the Act to be served in the manner provided for service of summons in the Code of Civil Procedure so far as may be applicable. It was found that notice was not served in accordance with law in as much as no proof was adduced by way of affidavit of the process-server or any other officer of the Municipality that any attempt was made to serve the notices personally. In the fact situation of the said case, it was also found that entirely inadequate time of only 24 hours was given to dismantle the structures in which the owners were carrying their business. In the case of Sushil Kumar (Supra), no affixture was at all made and hence service was not complete. 17. In the present case, summons for the date of hearing of 15.03.1986 was taken to the address where the defendant was admittedly, personally working for his employment as a Clerk in Roadways Depot on 21.02.1986. The process-server has specifically marked the endorsement on the original summons that defendant was personally know to him. The process-server has further reported about personal tendering of summons and a copy of plaint and about refusal by the defendant. The process-server has reported about affixture made at the booking office itself and that it was carried out in presence of driver Ranveer Singh who, declined to sign as witness. The process-server has further reported about personal tendering of summons and a copy of plaint and about refusal by the defendant. The process-server has reported about affixture made at the booking office itself and that it was carried out in presence of driver Ranveer Singh who, declined to sign as witness. Neither the question of identity of the defendant to whom summons was offered arose nor of the building where affixture was carried out, that being the booking office of Roadways Depot. Name and occupation of the declining witness has also been stated, he being the Driver with the Roadways Corporation, a co-employee with the defendant. Having examined the original summons (at page A/10 of the record of civil suit), this Court is satisfied that in the present case, the learned trial Court was not in error in accepting the service to be sufficient. 18. In any case, as already noticed above, even from the alleged date of knowledge of the decree i.e. 18.09.1993, the appellant did not file the application under Order 9 Rule 13 of the Code of Civil Procedure within limitation and no cause was shown for condonation of delay and, therefore, the application has rightly been rejected by the learned trial Court. 19. Moreover, in the present case it appears from the impugned judgement and decree dated 10.11.1986 that the suit was decreed after considering the credit memos bearing the signatures of the defendant of having purchased the goods in question. In the overall facts and circumstances of the case, this Court is satisfied that the delay in submissions of the application can neither be said to be bona fide nor the appellant could be believed to have been prevented by sufficient cause from moving the application within time nor there exists any valid ground to set aside ex parte decree. The appeal is totally devoid of substance and deserves to be dismissed. 20. As a result of the aforesaid, the appeal fails and is dismissed with costs.