JUDGMENT : Janak Raj Kotwal, J. 1. This appeal is directed against order dated 12.02.2013, whereby the learned Additional District Judge, Jammu has dismissed as time barred appellants' application for setting aside ex parte decree dated 20.12.2008 passed against them and the proforma respondent. Heard. I have perused the record. 2. As per the ex-parte judgment dated 20.12.2012 leading to impugned ex-parte decree, in a suit for possession of a house under Section 9 of the Specific Relief Act filed by respondent (plaintiff) notices were issued to the appellants and the proforma respondent (defendants) who appeared before the trial court along with their counsel, S. Teja Singh, Advocate on 11.02.2008 The defendants or their counsel, however, did not appear after that and the learned trial court initiated ex parte proceedings against them and passed ex parte judgment and decree in favour of the plaintiff on 20.12.2008. Application under Order 9, Rule 13 CPC for setting aside the ex parte decree was filed by the appellants and the proforma respondent (defendants) on 11.08.2009. 3. Article 164 of the Jammu and Kashmir Limitation Act, Svt. 1995 (for short the 'Limitation Act') prescribes for the time limit for filing an application under Order 9, Rule 13 CPC for setting aside a decree passed ex parte. The time prescribed for filing such an application is thirty days from the date of decree or, where the summons was not duly served, when applicant has knowledge of the decree. Article 164 is clear in its meaning and does not call for any interpretation. Thirty days' limitation runs from the date of decree where the defendant had been duly served upon in the suit in which ex parte decree is passed against him. Limitation, however, would run from the date of knowledge of the decree in a case where summons was not duly served upon the defendant. 4. The appellants and the proforma respondent (defendants) had engaged S. Teja Singh, Advocate as their counsel to contest the suit and as per the impugned order the defendants and S. Teja Singh appeared before the trial Court on 11.02.2008. It is thus, a case where the summons in the suit were duly served on the defendants so the thirty days' limitation for filing application for setting aside the ex parte decree under Order 9, Rule 13 CPC shall run from the date of decree, that is, 20.12.2008. It is thus, a case where the summons in the suit were duly served on the defendants so the thirty days' limitation for filing application for setting aside the ex parte decree under Order 9, Rule 13 CPC shall run from the date of decree, that is, 20.12.2008. Application, however, was filed on 11.08.2009, that is, after more than seven months from the date of decree and it is admitted that the appellants, while filing the application, as pointed out by the learned trial court, did not file any application for condonation of delay under Section 5 of the Limitation Act. It has been noticed that a prayer for condonation of delay was even not made in the application for setting aside the ex party decree. 5. In seeking setting aside of the ex parte decree, it was contended by the appellants that after their service in the suit they engaged S. Teja Singh, Advocate as their counsel, fee was paid to him and he had assured them that 'that their presence for the time being was not needed.' They were confident that their counsel would take care of their interests and remain present in the court but he absented resulting in ex parte proceedings and decree against them. It is also contended that appellant-Smt. Davinder Kour remained busy due to serious ailment of her husband and, therefore, could not attend the Court. It is contended in a nutshell that passing of the ex parte judgment and decree against the appellants (defendants) was the result of negligence and fault on the part of their counsel. In her deposition in support of the application, the appellant No. 1, Davinder Kour, has stated that S. Teja Singh had advised them that they were not required to attend the Court in person though they off and on should enquire from him. 6. The learned trial Court, as per the impugned order took up and accorded consideration to the question of limitation even while noticing that no application under Section 5 of the Limitation Act was filed or a prayer in this regard was made. The learned court seems to have assumed that the reason for delay was given as the ailment of the husband of the appellant No. 1 as she had gone to Srinagar for looking after him. The learned court seems to have assumed that the reason for delay was given as the ailment of the husband of the appellant No. 1 as she had gone to Srinagar for looking after him. The learned court, however, on appraisal of the record and statements of appellant No. 1 and the respondent found that husband of appellant No. 1 had never remained on medical leave. Learned trial court also noticed that no reason for non-appearance of the other defendants was given and every day's delay in filing the application under Order 9, Rule 13 CPC was not explained. In reference to the record of the application for execution of the decree filed by the respondent, learned trial court inferred that the appellants were knowing about the decree and, therefore, took the view that a party cannot ask for condonation of delay on insufficient ground and dismissed the application. 7. Mr. Ved Raj Wazir, learned Senior Advocate, appearing for the appellants submitted on the strength of averments made in the memorandum of the appeal that the appellants had proved before the learned trial court that they had engaged S. Teja Singh, Advocate as their counsel to contest the suit against them and had paid fee to him. Mr. Wazir submitted further that the learned trial court has fallen into error by holding that no sufficient ground for condoning the delay in filing application under Order 9, Rule 13 CPC was made out and has rendered the appellants to suffer for the negligence of their counsel. Mr. Wazir submitted further that it is settled by this Court by virtue of Full Bench Decision in Sham Lal Dhar v. M/s. Ply Board Industries, SLJ 1981 J & K 373 : 2010 (7) JKJ 919 [HC], that where a party engages a counsel to represent him in the court, the party cannot be allowed to suffer due to negligence of the counsel so engaged. Mr. Wazir also relied upon a judgment of a learned Single Judge of this Court in Syed Tassawur Jallali & Anr. v. Zamrooda (Mst.) & Ors., 2014 (3) JKJ 269 [HC]. 8. Per contra Mr. Mr. Wazir also relied upon a judgment of a learned Single Judge of this Court in Syed Tassawur Jallali & Anr. v. Zamrooda (Mst.) & Ors., 2014 (3) JKJ 269 [HC]. 8. Per contra Mr. Rahil Raja, learned counsel for the respondents argued vehemently that the application under Order 9, Rule 13 CPC should not have been entertained and was liable to be dismissed at its outset as it was time barred and not accompanied with any application for condonation of delay under Section 5 of the Limitation Act. Mr. Raja argued that more than explaining their failure to appear in the main suit till passing of the ex-parte decree appellants were required to seek condonation of delay in filing the application under Order 9, Rule 13 in terms of Section 5 of the Limitation Act and to explain every day's delay in filing the application. In support of his submissions, Mr. Raja relied upon two authorities of the Supreme Court in the decisions reported as (2009) 6 SCC 194 and (2001) 9 SCC 717 . Mr. Raja supported the order passed by the learned trial court by submitting that a time barred application without application for condonation of delay is not maintainable and that each day's delay in filing the application under Order 9, Rule 13 has not been explained. 9. The Full Bench of this Court in Sham Lal Dhar's case supra has held that "where the defendant employees a counsel for the purpose of his appearance in the court and the counsel neglects or fails to appear in the case, his neglect or failure would constitute a sufficient cause for the non-appearance of the defendant within the meaning of O. 9, R. 13 provided that the defendant had done all that was required of him to ensure that the counsel would represent him on all the necessary hearings. It also follows that where the delay in filing the application for setting aside the ex parte decree is due to the negligence or failure of the counsel to inform the defendant that an ex parte decree had been passed against him, such neglect or failure would be a sufficient cause for condonation of delay under Section 5 of the Limitation Act provided the defendant had done all that was required of him in order to keep himself posted with the progress of the case." 10. In an application under Order 9, Rule 13 CPC, applicant in order to succeed in setting aside of the ex parte decree against him has to satisfy the court that the summons was not duly served upon him or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. When such an application is barred by limitation, the applicant is required to file an application for condonation of delay in terms of Section 5 of the Limitation Act and to satisfy the court that he had sufficient cause for not making the application within prescribed period of thirty days from the date of the decree or the date of knowledge of the decree as the case may be. It is well settled that in an application under section 5 of the Limitation Act every day's delay in filing a time barred application or appeal is to be explained. 11. As the appellants were served with summons in the suit and they had caused appearance, the thirty days limitation commenced from the date of decree so the application under Order 9, Rule 13 was time barred. The appellants, while filing application under Order 9 Rule 13 were required also to file an application under Section 5 of the Limitation Act for condonation of delay and to explain by producing reliable material/evidence each day's delay in filing the application under Order 9, Rule 13 after the prescribed thirty days. A question might have been raised whether a prayer for condonation can be made in the application under Order 9, Rule 13 itself without making a separate application under Section 5 of the Limitation Act but, as said above, no prayer even like that was made. 12. The primary question, thus, arising for consideration and determination would be whether a time barred application, which is not supported with an application for condonation of delay under Section 5 of the Limitation Act, should be entertained and accorded consideration to. This question, however, is no more res integra as the legal position is well settled. 13. In Ragho Singh v. Mohan Singh and others, (2001) 9 SCC 717 (supra) the appeal was filed beyond time by ten days but application under Section 5 of the Limitation Act for condonation of the delay was not filed. This question, however, is no more res integra as the legal position is well settled. 13. In Ragho Singh v. Mohan Singh and others, (2001) 9 SCC 717 (supra) the appeal was filed beyond time by ten days but application under Section 5 of the Limitation Act for condonation of the delay was not filed. The Supreme Court held that appeal was liable to be dismissed on the ground of limitation. Para-6 of the reporting is reproduced; "6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs." (underlining be me) 14. In Sneh Gupta v. Devi Sarup and others, (2009) 6 SCC 194 (supra). Their Lordships have held in para-70 of the reporting as under; "70. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar and Sayeda Akhtar v. Abdul Ahad." (underlining be me) 15. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar and Sayeda Akhtar v. Abdul Ahad." (underlining be me) 15. As an application under section 5 of the Limitation Act was not filed, learned trial court as per Section 3 had no jurisdiction to hear the application under Order 9, Rule 13 CPC, which therefore, should have been dismissed at the outset as barred by limitation. 16. As the learned trial court entertained the application and took up the question of limitation for adjudication even without any application for condonation of delay, what the appellants were required was to satisfy the court that they had a sufficient cause for not filing the application within thirty days from the date of decree, that is, 20.12.2008. As the failure in this regard was attributed to the negligence of the counsel too, the appellants were required to aver clearly in the application and prove by leading evidence not only that they had paid fee to the counsel engaged by them but also that they had taken due care to keep themselves posted with the counsel about progress of the case. It is noticed that as per the averments made in the application under Order 9, Rule 13 the counsel, S. Teja Singh, had advised the appellants that their presence for the time being was not required but as per the statement of appellant No. 1 he also had advised them to enquire from him off and on. It, however, is not stated that they had provided sufficient material to their counsel to enable him to file written statement in the Court. It is not explained as to how it was not possible for the appellants or any one of them to enquire about the progress of their case from their counsel, all through till the suit was decreed ex-party and even after that till filing of the application under Order 9, Rule 13. Plea of bad health of the husband of appellant No. 1 has not been proved, it is not stated as to why appellants or any one of them did not contact their counsel. Plea of bad health of the husband of appellant No. 1 has not been proved, it is not stated as to why appellants or any one of them did not contact their counsel. Saying that they got knowledge of ex parte decree on 02.08.2009 does neither inspire confidence nor suffice without saying as to how knowledge on that day was acquired. Well it is that one cannot be left to suffer due to negligence of his counsel but at the same time one cannot succeed merely by attributing negligence to his counsel without proving that he on his part had done all that was necessary for progress of the case and keeping him posted with the counsel. 17. Viewed thus, no error or illegality can be said to have been committed by the learned trial Court in dismissing the application as time barred. This appeal, therefore, has no merit and is dismissed alongwith connected MPs. Record of the trial Court be remitted back alongwith a copy of this order forthwith.