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2011 DIGILAW 765 (ALL)

Ram Chandra v. Radhey Shyam

2011-03-25

SHISHIR KUMAR

body2011
JUDGMENT Hon'ble Shishir Kumar,J. Heard learned counsel for the appellant. This appeal arising out of dismissing an application filed by the applicant as 6-ga-2 under Section 5 of the Limitation Act. It appears that respondent filed a suit for cancellation of sale deed that was dismissed vide judgment and decree dated 16.11.1996. Plaintiff respondent filed an appeal as appeal No.440 of 1996, which was allowed ex parte vide its judgment and order dated 1.12.1998. The application under Order 41 Rule 1 CPC was filed by applicant on 18.12.2006 for setting side ex parte decree dated 1.12.1998 with an application under Section 5 of Limitation Act. Explanation given in the application is that he has not received any notice and therefore, he could not appeared before the Court. Further, an averment has been made that the publication was done in the local newspaper, which is not widely circulated at Maumbai. As the applicant is presently residing at Mumbai, therefore, he was having no knowledge, therefore, in such circumstances, the ex parte decree may be set aside. 2. An objection was filed on behalf of the plaintiff respondent stating therein that the appellant was having knowledge, they have filed an application No.19 of 2002 Ram Chander v.Radhey Shyam, which was before the same Court and in the absence of the parties on 21.09.2002 it was dismissed, meaning thereby in 2002, he was having knowledge of the ex parte decree. In such circumstances, it has been submitted that the reasons and grounds taken in Section 5 application appears to be incorrect and based on no evidence. If an application under Section 5 of Limitation Act has been filed for condonation of delay, day to day explanation has to be given If it has not been given, there is a presumption in law that reasons discloses in the application under Section 5 of the Limitation Act is not correct. The contention of the appellant to that effect that they came to know regarding ex parte decree in 2006 is not correct. After the decision, an objection was filed in 2001 and in that objection, a mention was there regarding decision in appeal No.440 of 1996. 3. The contention of the appellant to that effect that they came to know regarding ex parte decree in 2006 is not correct. After the decision, an objection was filed in 2001 and in that objection, a mention was there regarding decision in appeal No.440 of 1996. 3. The appellate Court on the basis of pleading of the parties has recorded a fining that in original suit No.173 of 1993 ,the appellant in the present application was defendant and the address given in the plaint was Kharshan, he appeared in the suit and the suit was decided on merits. Though, now he mentioned his address as Kharshan Kala, a finding to that effect has also recorded that defendant appellant has not rebutted such finding that how he has appeared before the Court. 4. From the record, it is clear that service upon respondent in appeal No.440 of 1996 has been shown by way of publication because the registered letter sent to the appellant returned back with an endorsement " not know". From the record, it is also clear that the paper 30-ga-1 is true copy of the application, in case No.19 of 2002 Ram Chander vs. Radhey Shyam, that was presented by Ram Chander with an application on 20.1.2002 and this was for restoration of the appeal No. 440 of 1996. The contents of that application has also been noted by the Court while considering the application under Section 5 of the Act. He has mentioned this fact that he has deputed some of his relative to do pairvy in the case. But, he has not appeared. Court below has recorded a finding that the appellant was having knowledge of the ex parte decree on 21.09.2002, therefore, he should file an application for restoration/review to set aside the ex parte order immediately, But he has filed the application in 2006, therefore, it cannot be entertained and it is liable to be dismissed. 5. After consideration of the submission of the appellant and after perusal of the record, it is clear that the suit was dismissed on 16.11.1996 after contest. On an appeal filed by the plaintiff respondent, it was decreed ex parte on 1.12.1998. 5. After consideration of the submission of the appellant and after perusal of the record, it is clear that the suit was dismissed on 16.11.1996 after contest. On an appeal filed by the plaintiff respondent, it was decreed ex parte on 1.12.1998. Initially registered letter was sent with the address given was returned back with an endorsement "not know", therefore, the publication was made in the local newspaper and after that as the appellant does not appear before the Court, the ex parte appeal was allowed on 1.12.1998. 6. As regards the contention of the appellant that the news paper, in which the publication was made that was not widely circulated in Bombay, being the fact that he was living in Bombay. This contention of the appellant cannot be accepted in view of the fact that it was pleaded in the application by appellant that he was living in Bombay. An application was filed in 2002, which was numbers as paper No.29-Ga-1 in case No.19 of 2002, the address given by the appellant is the same, which was given in the plaint. From perusal of the record and findings, it is also clear that appellant was having knowledge on 29.01.2002 regrading the ex parte decree. How and when the knowledge of ex parte order came to knowledge has not been disclosed. 7. Apart from application for condonation of delay, a specific averment with proof has to be made in the affidavit that person, who is approaching the Court was having no knowledge of the proceeding and notice to that effect has never been served and as soon as it came to his knowledge an application has been filed for setting aside or for recall of the order. If the reasons disclosed in the application is satisfactory then in that circumstances, the delay in filing an application can be condoned apart from the fact that it is highly belated. If the reasons has not disclosed properly and day to day delay has not been explained, person, who has approached the Court is not entitled for any relief. 8. Admittedly, in the present case notice was served by registered post and if in the local news paper publication was made, presumption in law is that notice is served. If the reasons has not disclosed properly and day to day delay has not been explained, person, who has approached the Court is not entitled for any relief. 8. Admittedly, in the present case notice was served by registered post and if in the local news paper publication was made, presumption in law is that notice is served. From the finding recorded, it is clear that the appellant was having knowledge regrading the ex parte order in 2002, but no application has been filed, he take 4 years to file an application, therefore, in such circumstances, I am of the opinion that there is no illegality in the order passed by the Court below while rejecting the application under Section 5 of the Limitation Act. 9. The appeal lacks merit. It is hereby dismissed. 10. No order as to costs.