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2014 DIGILAW 1040 (RAJ)

Sohan Lal v. Pusa Ram

2014-04-28

ALOK SHARMA

body2014
Hon'ble SHARMA, J.— This miscellaneous appeal under Section 104 read with Order 43 Rule 1(d) CPC has been filed by the appellant-defendant-applicant (hereinafter `the defendant') against the order dated 15.5.2012 passed by Additional District Judge Kishangarh, District Ajmer dismissing defendant's application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 30.10.2010 in favour of the respondent-non-applicant-plaintiff (hereinafter `the plaintiff') in his suit for specific performance. 2. Heard learned counsel for the parties, and perused the impugned order dated 15.5.2012 passed by the trial court. 3. The plaintiff filed a suit for specific performance before the trial court on 30.9.2009. Notice on the suit was served on the defendant on 7.10.2009 and receipt of summons is admitted by the defendant. Yet the defendant did not file presence before the trial court. Therefore on 8.10.2009 the proceedings were made ex-parte against him. Thereupon the trial court appears to have heard the plaintiff on his application under Order 39 Rules 1&2 CPC and granted ex-parte injunction directing the defendant to maintain status quo with regard to the suit property. As the defendant was proceeded ex-parte, a copy of the injunction order dated 22.10.2009 was served on the defendant on 27.10.2009, through the Process Server of the trial court. The Process Server Saiyad Osaf Hussain has been examined as NAW-4 in the proceedings under application under Order 9 Rule 13 CPC, and has stated, having entered the witness box, that the interim order dated 22.10.2009 was served on the defendant himself at his village Patan on 27.10.2009. The copy of the order dated 22.10.2009 was received by the defendant himself. Receipt of interim order dated 22.10.2009 signed by the defendant on 27.10.2009 was filed before trial court as Ex.A/2 and was duly proved by the witness. The defendant continuing to be absent in the proceedings of the suit for specific performance in spite of service of summons on him, the ex-parte decree was passed on 30.10.2010. On 27.1.2011 Petition No.28/2011 for execution of the decree dated 30.10.2010 was filed by the plaintiff. Notices of execution petition were issued to the defendant and again the same are stated by the counsel for the plaintiff to have been served on the defendant. Despite service of notice on the execution petition on 5.2.2011 the defendant did not appear. On 27.1.2011 Petition No.28/2011 for execution of the decree dated 30.10.2010 was filed by the plaintiff. Notices of execution petition were issued to the defendant and again the same are stated by the counsel for the plaintiff to have been served on the defendant. Despite service of notice on the execution petition on 5.2.2011 the defendant did not appear. Therefore the learned Executing Court on 28.3.2011 pursuant to decree dated 30.10.2010 executed the conveyance deed in favour of the plaintiff-decree holder qua the suit property in terms of the ex-parte decree dated 30.10.2010. 4. An application under Order 9 Rule 13 CPC then came to be filed by the defendant on 13.4.2011 by the defendant. The said application was not accompanied by any application under Section 5 of the Limitation Act seeking to show the “sufficient cause” for condonation of delay in filing belatedly the application under Order 9 Rule 13 CPC on 13.4.2011 against the ex-parte decree dated 30.10.2010. The case of the defendant instead was that limitation for the purpose of application under Order 9 Rule 13 CPC against the ex-parte decree dated 30.10.2010 be computed with reference to his purported date of knowledge, which according to him was 9.4.2010. The defendant denied having been served in the execution application but not in the suit and having been served a copy of the order of interim injunction dated 22.10.2009. 5. The application under Order 9 Rule 13 read with 151 CPC was opposed by the plaintiff on various grounds. For one, the application under Order 9 Rule 13 CPC filed on 13.4.2011 in respect of the ex-parte decree dated 30.10.2010 was barred by limitation in terms of Article 123 of the Limitation Act. It was submitted that in terms of aforesaid Article 123, where summons in a suit are duly served, the limitation is to be computed from the date of the decree (in this case 30.10.2010) and not from the date of knowledge. It was pointed out that summons in the suit were admittedly served on the defendant on 7.10.2009. Further, even the interim ex-parte injunction order dated 22.10.2009 was served upon the defendant on 27.10.2009. The receipt of service of the interim order dated 22.10.2009 duly signed by the defendant on 27.10.2009 was exhibited as A/2. Mr. It was pointed out that summons in the suit were admittedly served on the defendant on 7.10.2009. Further, even the interim ex-parte injunction order dated 22.10.2009 was served upon the defendant on 27.10.2009. The receipt of service of the interim order dated 22.10.2009 duly signed by the defendant on 27.10.2009 was exhibited as A/2. Mr. Saiyad Osaf Hussain, the process server entered the witness box as NAW-4 and stated that he had himself served the copy of the injunction order dated 22.10.2009 on the defendant. He remained unshaken in his cross examination. It was submitted that the Executing Court on 28.3.2011 executed the conveyance deed pursuant to ex-parte decree dated 30.10.2010 in favour of the plaintiff with regard to suit property. In the circumstances detailed hereinabove it was prayed that application under Order 9 Rule 13 CPC be dismissed. The trial court vide its impugned order dismissed the application under Order 9 Rule 13 CPC. Hence this civil miscellaneous appeal. 6. 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, the limitation was to be computed from the date of knowledge of defendant i.e. on 9.4.2010 and not from the date of the ex-parte decree dated 30.10.2010, as the defendant in spite of receiving summons in the suit on 7.10.2009 had lost the same. He was therefore unaware of the next date in the suit before the trial court and could not attend the proceedings of the suit. Reference has been made by the defendant's counsel to the judgment of the Hon'ble Supreme Court in case of Bhagmal vs. Kunwar Lal ( (2010) 12 SCC 159 ) and in the case of M.K. Prasad vs. P. Arumugam ( (2001) 6 SCC 176 ), wherein the Hon'ble Supreme Court has indeed observed that a liberal view on application under Order 9 Rule 13 CPC should be taken, as the decree-holder can be compensated in terms of cost. Aforesaid cases, to my mind, are however not apposite to the facts of the present case. 7. In the instant case, the application under Order 9 Rule 13 CPC was filed on 13.4.2011 seeking setting aside of the ex-parte decree dated 30.10.2010. Aforesaid cases, to my mind, are however not apposite to the facts of the present case. 7. In the instant case, the application under Order 9 Rule 13 CPC was filed on 13.4.2011 seeking setting aside of the ex-parte decree dated 30.10.2010. Ex facie the application was beyond limitation, yet no application under Section 5 of the Limitation Act was filed by the defendant to make out a case of “sufficient cause” for the delay in filing the application. 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 7.10.2009. In the circumstances in law limitation in filing the application under Order 9 Rule 13 CPC had to be computed from the date of decree dated 30.10.2010 and not the purported date of knowledge. The application under Order 9 Rule 13 CPC filed on 13.4.2011 was beyond limitation and to be competent ought to have been accompanied by an application under Section 5 of the Limitation Act showing requisite “sufficient cause” and seeking condoning the delay in filing the application beyond 30 days from the date of decree dated 30.10.2010. Non filing of a Section 5 of Limitation Act application was by itself fatal to the defendant's case. 8. I find no merit in the lameduck 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. 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. When requisite mitigating facts are absent exercising of power to condone delay under Section 5 of the Limitation Act without as much a formal application explaining “sufficient cause” would be a travesty of justice and in fact opposed to public policy which as a statute of repose, the limitation Act propagates. When requisite mitigating facts are absent exercising of power to condone delay under Section 5 of the Limitation Act without as much a formal application explaining “sufficient cause” would be a travesty of justice and in fact opposed to public policy which as a statute of repose, the limitation Act propagates. Reverting to the facts of the case, the grossest and reckless negligence of the defendant in failing to appear before the trial court in spite of receipt of summons in the suit and even thereafter on service of copy of the ex-parte injunction order through the court's process server is far removed from the obligation to show sufficient cause warranted under Order 9 Rule 13 CPC. Thus even on merits of the application under Order 9 Rule 13 CPC, no case is made for the defendant. 9. The order dated 15.5.2012 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. 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.