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2016 DIGILAW 544 (HP)

Brij Lal v. Narbada

2016-04-25

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Heard. Order, dated 17.11.2016, passed in an application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code, is under challenge before this Court in this petition. The ex-parte decree passed on 30.6.2011 in H.M.P. No. 69 of 2009 on condonation of delay has been set aside vide the order under challenge. 2. The complaint is that the petitioner-husband was never served with notice of the application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code nor afforded an opportunity of being heard and ex-parte decree has been quashed and set aside. The order, under challenge, therefore, is stated to be illegal and violative of principles of natural justice. 3. Having gone through the record and also taking into consideration the submissions made on behalf of the petitioner-husband, it is crystal clear that two applications; one under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code and the another under Section 5 of the Limitation Act came to be filed with the prayer to set aside ex-parte decree passed in H.M.P. No. 69 of 2009 by the respondent-wife. The applications were listed in the Court of learned District Judge, Mandi with the office report, dated 5.6.2013. Notice of these applications were issued to the petitioner-husband for 18.7.2013. The notice, which is available on record, finds mention of both the applications. No doubt, the petitioner-husband could not be served with the notice for 18.7.2013 and even for the date next thereto viz. 12.3.2014, however, he was duly served with the notice for 21.4.2014. The copy of this notice available on record also finds mention of the application filed under Order 9 Rule 13 read with Section 151 of the Civil Procedure code; meaning thereby that the petitioner-husband had due knowledge of filing of two applications, i.e. one under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code and another under Section 5 of the Limitation Act. This fact is even substantiated from the perusal of the reply filed in which both the applications, find mention. 4. Now coming to the issues framed. The following issues were framed by the learned District Judge in both the applications on 21.8.2014 :- 1. Whether there are sufficient grounds for condoning the delay in moving the application, as alleged? OPA 2. 4. Now coming to the issues framed. The following issues were framed by the learned District Judge in both the applications on 21.8.2014 :- 1. Whether there are sufficient grounds for condoning the delay in moving the application, as alleged? OPA 2. Whether there are sufficient grounds for setting aside the exparte decree, as alleged? OPA 3. Whether the application is not maintainable? OPR 4. Relief. 5. It is crystal clear that issues not only pertain to the question of limitation, but also qua there exists sufficient grounds to set aside ex-parte decree or not. The petitioner husband, during the course of proceedings, in the trial Court, has never raised the plea that he has not received notice to the application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code or filed reply thereto. Not only this, he has produced the evidence in order to falsify the claim of the respondent-wife in both the applications. Now when remained unsuccessful, he has turned around and initiated the proceedings before this Court on the grounds, as aforesaid, which in the considered opinion, are not available to him. As a matter of fact, when with eye open, he has contested both the applications, produced evidence and he has been afforded the opportunity of being heard also, it lies ill in his mouth to complain that he has received notice only in the application under Section 5 of the Limitation Act and that he has not been heard so far as the application under Order 9 Rule 13 read with Section 151 of the Civil Procedure code is concerned. I, therefore, find no merit in this petition and the same is accordingly dismissed. Records of the learned trial Court as well as of the learned lower Appellate Court be sent back. The petition is accordingly disposed of, so also the pending applications, if any.