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2017 DIGILAW 2511 (RAJ)

Nand Kishore Prasad Singh v. Praveen Kumar Singh

2017-11-15

PRAKASH GUPTA

body2017
ORDER : Prakash Gupta, J. This revision petition is directed against the order dated 22nd April, 2017 passed by learned Additional District Judge No.3, Jaipur Metropolitan, Jaipur whereby the application filed by the defendant-non-petitioner under Order 9, Rule 13 CPC was allowed and the ex parte judgment and decree dated 23rd May, 2016 were set aside. 2. Briefly stated the facts of the case are that the plaintiff petitioner filed a civil suit against the defendant-non-petitioner for declaration on 8th May, 2006. In the suit when the defendant did not appear an ex parte order was passed against him on 17th November, 2015 and finally ex parte decree was passed on 23rd May, 2016. The defendant-non-petitioner filed an application under Order 9, Rule 13 CPC to set aside the ex parte decree. The application was allowed by the learned trial court on 22nd April, 2017. 3. The trial court after detailed discussion about the service of summons upon the defendant held that the service upon the defendant was improper and consequently allowed the application. Hence, this revision petition. Heard learned counsel for the parties. 4. The main contention of Mr. NK Maloo, learned Sr. Counsel for the plaintiff-petitioner is that the application filed under Order 9, Rule 13 CPC was not filed within the prescribed period of limitation as the defendant-non-petitioner had knowledge about the impugned judgment and decree. He has submitted that on 4th January, 2017 and 6th January, 2017 the defendant-non-petitioner had filed applications in the JDA wherein it was specifically mentioned that an ex parte decree was passed in the matter. In view of Article 123 of the Limitation Act, application under Order 9, Rule 13 CPC had to be filed within thirty days from 4th January, 2017. Indisputably the application was filed on 17th February, 2017 which is not within the prescribed period i.e. thirty days. With the application under Order 9, Rule 13 CPC, no application under Section 5 of the Limitation Act to condone the delay had been filed. 5. Per contra, Mr. Ravi Kant, learned counsel for the defendant-non-petitioner has supported the order passed by the learned trial court. 6. With the application under Order 9, Rule 13 CPC, no application under Section 5 of the Limitation Act to condone the delay had been filed. 5. Per contra, Mr. Ravi Kant, learned counsel for the defendant-non-petitioner has supported the order passed by the learned trial court. 6. Having regard to the submissions made by the learned counsel for the parties, I am of the considered view that in this matter evidence is to be taken by the trial court as to when the defendant-petitioner came to know about the ex parte judgment and decree. 7. In the result, the revision petition is allowed and the order dated 22nd April, 2017 is set aside. The learned trial court is directed to decide the application filed by the defendant-non-petitioner under Order 9, Rule 13 CPC afresh after affording opportunity to both the parties to lead evidence in this regard. 8. Office is directed to sent back the record of the case to the trial court forthwith. 9. In the meantime, operation of the impugned judgment and decree dated 23rd May, 2016 shall remain stayed. 10. Both the parties are directed to remain present in the trial court on 30th November, 2017.