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2016 DIGILAW 2907 (PNJ)

Krishan Kumar v. Anoop Singh

2016-10-06

DARSHAN SINGH

body2016
JUDGMENT : DARSHAN SINGH, J. The present revision petition has been preferred against the judgment dated 19.01.2016 passed by the learned Additional District Judge, Rohtak, vide which the appeal filed against the order dated 11.11.2003 passed by the learned Civil Judge (Sr. Division), Rohtak, has been dismissed. 2. Respondent no.1/plaintiff-Anoop Singh has filed t he suit for mandatory-cum-prohibitory injunction against the petitioner and respondents no. 2 to 6. The said suit was decreed ex parte vide impugned judgment dated 11.11.2003. Petitioner-defendant no. 1 filed the application under Order 9 rule 13 of the Code of Civil Procedure, 1908 (for short 'C.P.C.') for setting aside the aforesaid ex parte judgment and decree dated 11.11.2013 primarily on the ground that he has engaged Sh. Ramesh Rai Gulia, Advocate as his counsel. He told the petitioner that he need not come on each and every date and he will appear on h is behalf and shall call him when his presence shall be required. The petitioner believed his counsel and ultimately he told the petitioner that the case has been decided in his favour and against the plaintiff. He made the request to his counsel to supply the copy of the judgment, but Sh.Ramesh Rai Gulia, Advocate has expired and there was no one in his family to continue with the legal practice as such he could not got the proper information. He came to know about the ex parte judgment and decree a week before the filing of the application when the Court official visited the sit e in order to remove the encroachment. 3. The said application has been contested by plaintiff- respondent no.1 by controverting all the pleas raised therein. 4. The application moved by the petitioner under Order 9 rule 13 C.P.C was dismissed by the learned trial Court vide impugned order dated 05.09.2013. The appeal filed by the petitioner has also been dismissed by the learned Additional District Judge, Rohtak. Hence this revision petition. 5. I have heard Mr.Rajesh Lamba, Advocate, learned counsel for the petitioner and have carefully gone through the paper book. 6. Initiating the arguments, learned counsel for the petitioner contended that the petitioner has engaged Sh.Ramesh Rai Gulia, Advocate at Rohtak to defend the suit. The written statement was filed by him. His counsel advised that he need not appear on each and every date. 6. Initiating the arguments, learned counsel for the petitioner contended that the petitioner has engaged Sh.Ramesh Rai Gulia, Advocate at Rohtak to defend the suit. The written statement was filed by him. His counsel advised that he need not appear on each and every date. He will defend the suit and will call the petitioner as and when required. But, his counsel did not give any intimation to him. His counsel also conveyed the wrong information about the result of the suit. He contended that the petitioner only came to know about the ex parte judgment and decree dated 11.11.2003 passed against him when the Court officials came to the site to remove the encroachment. 7. Learned counsel for the petitioner contended that the petitioner could not appear in the trial Court as n o information was given to him by his counsel. Even, the copy of the judgment was not supplied to him as Sh.Ramesh Rai Gulia, Advocate, has died. He contended that the valuable rights of the petitioner are involved in t he suit. The ex parte judgment and decree has resulted in serious injustice to the petitioner. Thus, he pleaded that the ex parte judgment and decree dated 11.11.2003 deserves to be set aside and the petitioner should be given an opportunity to contest the suit on merits. 8. I have duly considered the aforesaid contentions. 9. This fact is not disputed that the present petitioner was duly served in the suit. He appeared in the suit through his counsel Sh. Ramesh Rai Gulia, Advocate and filed the written statement. After framing of the issues, the evidence was led by the plaintiff-respondent no.1. The witnesses produced by him were cross-examined by the counsel for the petitioner. The evidence of the plaintiff was close d by his counsel on 22.03.1999. Thereafter, the suit remained pending as an application was moved for appointment of the Local Commission and t he petitioner was ultimately proceeded against exparte vide order dated 10.10.2003 i.e. after more than three and half years of the evidence having been closed by the plaintiff-respondent no.1. It shows that the suit was contested by the petitioner till 10.10.2003. The suit was instituted in the trial Court on 28.07.1997. The petitioner was proceeded against ex parte on 10.10.2003. It shows that the suit was contested by the petitioner till 10.10.2003. The suit was instituted in the trial Court on 28.07.1997. The petitioner was proceeded against ex parte on 10.10.2003. It means, he contested the suit for more than six y ears and absented from the proceedings when his turn come to lead the evidence. 10. As per the provisions of Order 9 rule 13 C.P.C., the ex parte decree can be set aside if the aggrieved party satisfies the Court that summons were not duly served or he was prevented by sufficient cause from appearing when the suit was called. In the instant case, as the petitioner has contested the suit for about six years that shows that the petitioner was duly served and had joined the proceedings. The petitioner has alleged that he did not appear before the learn ed trial Court as his counsel has assured him that he will call him as an d when his presence is required and he need not appear on each and every d ate of hearing. It is very easy to take this type of plea and to put the blame on the counsel for the own neglect of the party. It is not believable that the petitioner would not have bothered to contact his counsel for such a long period to know about the status of the suit. There is also no reason to believe that his counsel would have conveyed him the wrong information about the result of the suit. It appears that all these pleas have been concocted by the petitioner to wriggle out from the situation that h e has deliberately and intentionally absented from the proceedings of the case. 11. The plea raised by the petitioner that due to the death of his counsel he could not get the certified copy of the judgment has also no legs to stand. The petitioner could have himself moved the application in the Court to get the certified copy. It is not necessary that such copy must be filed through some Advocate. Even, a party can personally file the application for supply of the copy of the judgment. The petitioner could have himself moved the application in the Court to get the certified copy. It is not necessary that such copy must be filed through some Advocate. Even, a party can personally file the application for supply of the copy of the judgment. Thus, the plea raised by the petitioner, that he only came to know about the exparte judgment and decree dated 11.11.2003 only a week before the filing of the application when the Court official visited the sit e, is also not believable. 12. The ex parte judgment and decree has been passed on 11.11.2003. As already mentioned, the petitioner was duly served in the suit and joined the proceedings. The application under Order 9 rule 13 C.P.C., for setting aside the ex parte judgment and decree has been filed on 18.08.2012 i.e. after about 9 years of the passing of the ex parte decree. As per Article 123 of the Limitation Act, 1963, the limitation to file the application for setting aside the ex parte decree is 30 days from the date of decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. In the instant case, the petitioner was duly served with the notice and even joined the proceedings. So, he was required to file the application within 30 days from the date of decree. However, the application has been filed by the petitioner after about 9 years of the passing of the ex parte decree. So, the application is hopelessly time barred. 13. Thus, keeping in view my aforesaid discussion, I do not find any illegality in the impugned order/judgment passed by the learned Courts below and these do not call for any interference by this Court. 14. Thus, the present revision petition having no merits, is hereby dismissed.