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Madhya Pradesh High Court · body

2008 DIGILAW 387 (MP)

Mohan Pachari v. Jagdish Chandra Dubey

2008-03-10

RAJENDRA MENON

body2008
ORDER :- Challenging the concurrent orders passed by the trial Court and the appellate Court in rejecting the application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure, and refusing to set aside the ex parte judgment and decree of eviction passed against the petitioner, this petition is filed under Article 227 of the Constitution. 2. The suit in question was filed by the respondent for eviction of the petitioner on the ground of arrears of rent and various other grounds, Issues were framed and after recording of evidence of the plaintiff when the case was fixed for evidence of the defendant i,e, the present petitioner, on 2-4-2005, the petitioner remained absent and, therefore, ex parte proceedings were drawn and an ex parte judgment and decree was passed on 13-5-2006. An application was filed before the trial Court on 15-7-2005, challenging the ex parte Judgment and decree. The application has been rejected by the trial Court and the appellate Court on the ground that the application for setting aside ex parte decree is not filed within 30 days, no reasonable cause for the delay is shown and the application is dismissed on the ground that condonation of delay is not sought for by filing appropriate application under Section 5 of the Limitation Act. 3. Shri Manikant Sharma, learned counsel for the petitioner, emphasized that on 2- 4-2005, when the case was fixed for evidence of the petitioner he fell suddenly sick. He was under treatment, could not appear and after the ex parte Judgment and decree was passed on 3-5-2006, petitioner approached his counsel on 17-5-2005, when he was informed about the ex parte Judgment and decree being passed, he applied for certified copy which was given to him on 21-6-2005 and he immediately filed the application under Order 9 Rule 13 CPC on 15-7-2005. It is argued by Shri Manikant Sharma that if the period incurred by the petitioner for obtaining certified copy i.e. period from 13-5-2005 to 20-5-2005 is excluded, then the application for setting aside the ex parte judgment and decree is within time and in rejecting the application on the ground of delay and on the ground that application for condonation of delay under Section 5 is not filed, the learned Court has committed error. 4. 4. Inviting my attention to Section 12 of the Limitation Act, 1963, learned counsel for the petitioner argued that the period spent for obtaining certified copy is to be excluded and, therefore, the Court has committed error in rejecting the application under Order 9, Rule 13 CPC on the ground of delay. 5. Accordingly by placing reliance on a judgment of the Kerala High Court in the case of Unniraman v. Padmanabhan and another, AIR 1988 Kerala 257, and, the judgment of the Allahabad High Court in the case of Rajiv Lochan Pandey v. Madan Gopal Sharma and others, AIR 1989 Allahabad 45, interference into the matter is sought for. 6. Refuting the aforesaid contention and taking me through the reasons indicated by the Courts below in rejecting the application under Order 9 Rule 13 CPC, Shri Nanhoriya, learned counsel for the respondent, submitted that there is a deliberate delay on the part of the petitioner. He remained absent on various occasions and in rejecting the application under Order 9 Rule 13 CPC on the ground of delay, learned Courts have not committed any error. It is submitted by Shri Nanhoriya that in rejecting the application under Order 9 Rule 13 CPC after considering the totality of the facts and circumstances of the case, the Court below have not committed any error which warrants interference in these proceedings. 7. Learned counsel for the respondent also pointed out that under Article 123 of the Limitation Act, an application for setting aside the decree passed ex parte is to be filed within 30 days from the date of decree or 30 days from the date of knowledge, where summons or notice is not served on the applicant. It is stated that in the present case, as the notice of summons was duly served on the present petitioner, the period of 30 days has to be reckoned from the date of decree and, therefore, in rejecting the application under Order 9, Rule 13 CPC, learned Court has committed no error warranting interference. 8. I have heard learned counsel for the parties and perused the record. From the records it is seen that the suit in question was filed for eviction and in the eviction proceedings petitioner has caused various delay. 8. I have heard learned counsel for the parties and perused the record. From the records it is seen that the suit in question was filed for eviction and in the eviction proceedings petitioner has caused various delay. He was not even depositing the rent and after taking note of the totality of the circumstances it has been held by the trial Court and the appellate Court that while considering an application for setting aside the ex parte judgment and decree, the totality of the circumstances have to be seen and thereafter the application decided. In this case, after considering the conduct of the petitioner in trying to deliberately delay the proceedings, application under Order 9 Rule 13 CPC is rejected not only on the ground of delay, but also after taking note of the fact that the conduct of the petitioner was only to somehow delay the proceedings. It is seen from the records that petitioner was appearing and was represented by a counsel and he was aware of the date being fixed for evidence i.e. 2-4-2005 and also for judgment i.e. 13-5-2005. It is in the backdrop of these factual aspects of the matter that the question of interference is to be considered in the present case. 9. Under Article 123 of the Limitation Act, an application to set aside the decree passed ex parte or to rehear theappeal decreed or heard ex parte is to be filed within 30 days and the period of 30 days is to be reckoned in cases where summons and notices is properly served on the applicant with effect from the date of decree and in all others cases with effect from the date of knowledge of the decree. 10. In the present case, it is not in dispute that the petitioner was duly served. He had filed his written statement and was appearing in the proceedings when the case was proceeded ex parte against him on 2-4-2005, that being so, the period of 30 days is to be reckoned with reference to the date of the decree and not from the date of the knowledge. The question, therefore, now would be as to whether the period for obtaining certified copy has to be excluded or not in such a case. 11. Section 12 of the Limitation Act contemplates for exclusion of time in legal proceedings. The question, therefore, now would be as to whether the period for obtaining certified copy has to be excluded or not in such a case. 11. Section 12 of the Limitation Act contemplates for exclusion of time in legal proceedings. The period excluded therein for obtaining certified copies are contemplated under sub-section (2), (3) and (4). Sub-section (2) deals with an appeal or an application for leave to appeal or for revision or for review of a judgment. Similarly sub-section (3) also deals with a decree or order appealed from or sought to be revised or reviewed. In cases covered under sub-sections (2) and (3), the period spent for obtaining certified copy is excluded. Sub-section (4) deals with application to set aside an award. 12. Section 12 and Article 123 of the Limitation Act has been considered by the Orissa High Court in the case of Arjuna Charan Patnaik v. Purnanand Patnaik and another, AIR 1968 Orissa 207 and in Para 4 of the aforesaid judgment, it is held that the provisions of Section 12 does not cover an application for setting aside a decree passed under Order 9, Rule 13 CPC. 13. This judgment of the Orissa High Court is considered by the Karnataka High Court in the case of Revanasiddappa Jewargi and others v. Malkajappa, AIR 1995 Karnataka 366, and the learned Judge after considering the provisions of sub-section (1) of Section 12 of the Limitation Act has held that sub-section (1) of Section 12 categorizes three broad heads under which all legal proceedings can be classified and has held that all miscellaneous applications would come within the purview of sub-section (1) of Section 12 and, therefore, the period spent for obtaining certified copy can be excluded and in the process has disagreed with the view taken by the Orissa High Court in the case of Arjuna Chran Patnaik (supra). 14. Sub-section (1) of Section 12 only contemplates that in excluding the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. This subsection does not deal with exclusion of the period spent for obtaining certified copy. 14. Sub-section (1) of Section 12 only contemplates that in excluding the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. This subsection does not deal with exclusion of the period spent for obtaining certified copy. This section may apply to an application filed under Order 9, Rule 13 CPC, but its application is limited to excluding the day on which the order is passed and does not refer to the period spent in obtaining certified copy. Requisite time spent for obtaining copies are only excluded under sub-sections (2), (3) and (4). It is provided in sub-section (2) that in computing the period of limitation for filing an appeal or an application for leave to appeal or revision or review of a judgment, the date on which the judgment complained of was pronounced and the time requisite for obtaining copy shall be excluded. Similarly, sub-section (3) deals with a decree or order appealed from or sought to be revised or reviewed and sub-section (4) deals with setting aside an award. 15. The Karnataka High Court while dealing with the matter has misread subsection (1) of Section 12 and in doing so, has not considered the fact that sub-section (1) of Section 12 does not contemplate a provision for excluding days requisite spent for obtaining copy of the decree or judgment as has been specifically provided for in sub-sections (2), (3) and (4). The question has been considered by the Orissa High Court with specific reference to provisions under Order 9 Rule 13 C.P.C. and after considering the meaning of the words "date of the decree", as provided under Order 20 Rule 7 CPC, has specifically held that provisions of Section 12 of the Limitation Act does not exclude the period spent for obtaining certified copy, while considering the question in a proceeding under Order 9 Rule 13 CPC. 16. I am of the considered view, that law has been correctly laid down by the Orissa High Court and with due respect, I am unable to subscribe to the views expressed by the learned Judge of the Karnataka High Court in the case of Revanasiddappa Jewargi (supra). 17. 16. I am of the considered view, that law has been correctly laid down by the Orissa High Court and with due respect, I am unable to subscribe to the views expressed by the learned Judge of the Karnataka High Court in the case of Revanasiddappa Jewargi (supra). 17. Sub-section (1) of Section 12 only contemplates a provision for excluding a day from which such period is to be reckoned and does not deal with exclusion of the days requisite for obtaining copies of the order, decree, judgment as the case may be, that being so, in the light of the fact that the provisions of Section 12 and the exclusion contained therein will not apply to a proceeding under Order 9 Rule 3 CPC, I see no error in the order passed by the learned Court below, warranting interference in these proceedings. 18. That apart, the learned Court below having examined the question with regard to merit of the reasons given by the petitioner and his conduct in not participating in the proceedings with due diligence, no case is made out for interference in these proceedings under Article 227 of the Constitution. 19. Accordingly petition stands dismissed, as it is devoid of merits. Petition dismissed.