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Rajasthan High Court · body

2014 DIGILAW 1038 (RAJ)

K. Thomas v. Mandir Shri Jagdishji Balbhadraji

2014-04-28

ALOK SHARMA

body2014
JUDGMENT 1. - This miscellaneous appeal under Order 43, Rule 1 (d) CPC has been filed by the appellant-defendant-applicant (hereinafter 'the defendant') against the order dated 19-1-2005 passed by District Judge Sawai Madhopur dismissing the application under Order 9, Rule 13 CPC for setting aside the ex-parte decree dated 9-8-2002 in favour of the respondent-non-applicant-plaintiff (hereinafter 'the plaintiff') in a suit for eviction and recovery of rent. 2. Heard learned counsel for the parties, and perused the impugned order dated 19-1-2005 passed by the trial court. 3. The facts of the case are that the plaintiff filed a suit for eviction and recovery of rent before the trial court. Notice on the suit was served on the defendant on 24-2-2001 to appear before the trial court on 1-3-2001. Yet the defendant remained absent and did not appear before the trial court on 1-3-2001, and even thereafter. On 27-3-2001 proceedings in the suit were made ex-parte against the defendant. Thereupon the trial court appears to have taken the plaintiff's evidence, heard the plaintiff and the ex-parte decree was passed on 9-8-2002. It is also a fact the plaintiff for a while did not move any application for setting aside the ex-parte order dated 27-3-2001 or the ex-parte decree dated 9-8-2002. Petition for execution of the ex parte decree dated 9-8-2002 was filed by the plaintiff. Notices on the execution petition were issued and served on the defendant. The defendant deposited Rs. 10,000/-for satisfying the decretal amount on 28-8-2003. 4. Thereafter, an application under Order 9, Rule 13 CPC came to be filed by the defendant on 18-9-2003. An application under Section 5 of the Limitation Act was also filed in accompaniment seeking to show "sufficient cause" for condonation of delay in belatedly filing the application under Order 9, Rule 13 CPC on 18-9-2003 against the ex parte decree dated 9-8-2002. The case of the defendant was that even though he received the summons in the suit on 24-2-2001, he fell seriously ill on 26-2-2001 and remained so till 15-3-2001. During the illness he lost the summons. On recovery from illness, he was taken by his mother to his village at Kerala, where he stayed for about two and a half months. According to the defendant he came to know of the ex-parte decree dated 9-8-2002 only on 9-9-2003 when he received the warrant for dispossession. During the illness he lost the summons. On recovery from illness, he was taken by his mother to his village at Kerala, where he stayed for about two and a half months. According to the defendant he came to know of the ex-parte decree dated 9-8-2002 only on 9-9-2003 when he received the warrant for dispossession. It was further stated that the plaintiff had already taken an amount Rs. 11,400/-and an amount of Rs. 10,000/-deposited in the account of plaintiff on 9-8-2003. 5. The application under Order 9, Rule 13 CPC was opposed by the plaintiff on various grounds. 6. The learned trial court considered the fact that the defendant did not produce any documentary evidence of his illness which allegedly prevented him from appearing before the trial court in spite of the admitted service of summons in the suit. The argument that service was no service in the eye of law, because the summons received were in the name of T. Thomas, not K. Thomas as the defendant, was found to be of no avail as the defendant did indeed admittedly receive the summons in the suit. Further the defendant appeared before the executing court and on 29-8-2003 and deposited Rs. 10,000/-. The trial court did not find in the circumstances the reason shown by the defendant either for filing the application under Order 9, Rule 13 CPC or in the application under Section 5 of the Limitation Act to be a "sufficient cause". It therefore dismissed the application for condonation of delay and consequently the Order 9, Rule 13 CPC application at the instance of the defendant for setting aside the ex-parte decree dated 9-8-2002. Hence, this civil miscellaneous appeal. 7. Counsel for the defendant has submitted that Order 9, Rule 13 CPC should be liberally construed in view of the desire of the courts that all matters should be adjudicated on merits and not ex-parte. It was submitted that in the facts obtaining, limitation was to be computed from the date of knowledge of the defendant i.e. on 9-92003 when warrant in the execution petition was served on him and not from the date of the ex-parte decree dated 9-8-2002, as the defendant in spite of receiving summons in the suit on 24-2-2001 had lost the same. The defendant for reasons of accidentally loosing the summons in the suit served on him was therefore unaware of the next date in the suit before the trial court and could not attend the proceedings. Reference has been made by the defendant's counsel to the judgment of the Hon'ble Supreme Court in case of Bhagmal v. Kunwar Lal [ (2010)12 SCC 159 ] and to the case of M.K. Prasad v. P. Arumugam [ (2001)6 SCC 176 ] , wherein the Hon'ble Supreme Court has indeed observed that a liberal view on applications under Order 9, Rule 13 CPC should be taken, as the decree-holder can be compensated in terms of cost. The aforesaid judgments of the Hon'ble Apex Court, to my mind, are however not apposite to the facts of the present case. 8. In the instant case, the defendant has completely failed to show any "sufficient cause" for filing a belated application under Order 9, Rule 13 CPC on 18-9-2003 seeking setting aside of the ex-parte decree dated 9-8-2002. Article 123 of the Limitation Act, provides that an application for setting aside an ex-parte decree passed subsequent to service of summons shall be filed within 30 days. The defendant was admittedly served notice in the suit on 24-2-2001. Limitation for filing the application under Order 9, Rule 13 CPC had in the circumstances to be computed from the date of decree dated 9 8-2002 and not the purported date of knowledge i.e. 9-9-2003. 9. I find no merit in the lame-duck argument, vacuously made about a liberal approach to Order 9, Rule 13 CPC application as if unexceptionally mandated by the Hon'ble Apex Court and/ or this court dehors the facts of a case. The discretionary power of the courts in condoning delay in taking proceedings beyond the period of limitation statutorily provided have to be exercised with reference to the facts of each case. The gross and reckless negligence of the defendant in failing to appear before the trial court in spite of receipt of summons in the suit is evident from the facts of this case as have been detailed here-in-above. The trial court has rightly found no ground for condoning the delay in filing the application under Order 9, Rule 13 CPC and dismissed the accompanying application under Section 5 of the Limitation Act. The trial court has rightly found no ground for condoning the delay in filing the application under Order 9, Rule 13 CPC and dismissed the accompanying application under Section 5 of the Limitation Act. Even on merits of the application under Order 9, Rule 13 CPC, no case was made for the defendant. 10. The order dated 19-1-2005 passed by the trial court impugned in this appeal, in the facts of the case and state of law is a well considered order objectively analysing all facts/evidence. Nothing erroneous or illegal can even remotely be attributed thereto. It deserves to be upheld. It is so. There is no force in the appeal. Dismissed.All corrections made in the order have been incorporated in the order being emailed.Appeal Dismissed. *******