Multan Singh vs H.P. State Forest Corporation Ltd.

Kuldip Singh, Judge

This revision has been directed against order dated 8.4.2011 passed by learned District Judge, Kangra at Dharamshala, in Civil Misc. Appeal No. 36-D/XIV/2010, affirming the order dated 18.8.2010 passed by learned Civil Judge (Senior Division), Kangra at Dharmashala in CMA No. 25/2006.

The respondent had filed a suit for recovery of 60,481/ against the petitioner. The suit was decreed on 8.7.2002. The petitioner filed an application under Order 9 Rule 13 CPC for setting aside exparte decree. The application was contested and the same was dismissed by the learned Civil Judge on 18.8.2010. The petitioner filed an appeal against the judgement dated 18.8.2010, which has been dismissed by the learned District Judge on 8.4.2011, hence the present revision.

It has been submitted by the learned counsel for the petitioner that petitioner was not properly served in the suit and when petitioner came to know about the exparte decree, he immediately took steps for setting aside exparte decree. The two courts below have erred in rejecting the application of petitioner for setting aside the exparte decree. The learned counsel for the petitioner has submitted that there was an arbitration clause in the agreement and for that reason also the suit could not have been decreed.

I have heard the learned counsel for the parties and have also gone through the record. The petitioner in the application for setting aside exparte decree has stated that he came to know about the proceedings in the last week of December 2005, when he received the summons in the execution. In his affidavit Ex.AW 1/A, the petitioner has stated that he came to know about the proceedings in the last week of November 2005 when he received the summons in execution petition. He has stated that he applied for copy of judgement dated 8.7.2002, which was received on 6.3.2006. On the file of trial court, there is a copy of judgement dated 8.7.2002. This copy was applied on 26.12.2005 and it was attested on 28.2.2006 and was delivered on 6.3.2006. It has not been made clear for what purpose the copy of judgement dated 8.7.2002 was required for setting aside the exparte decree.

In the application for setting aside the exparte decree the petitioner has pleaded that he came to know about the proceedings in the last week of December 2005, but in his affidavit Ex. AW 1/A he has stated that he came to know about the proceedings in the last week of November 2005. Why he waited till 26.12.2005 for applying certified copy of judgement dated 8.7.2002, that has not been explained. The record of the suit file is also available. It is clear from order dated 17.10.2000 that petitioner was not present despite personal service, therefore, he was proceeded exparte.

RW 1 Madhu, Record Keeper in her statement has stated that on 27.7.2000 summons were issued to Multan Singh for the date 17.10.2000. Multan Singh was served on 5.9.2000. RW 1 has deposed on the basis of record. The petitioner has not examined the process server in support of his contention that he was not served in the suit. It has been established on record that petitioner was duly served on 5.9.2000 for the date 17.10.2000. The petitioner even after receiving the notice of execution in November 2005 did not take immediate steps for setting aside exparte decree. He filed an application for setting exparte decree on 8.3.2006. The petitioner has not explained the delay for filing application for setting aside exparte decree even after he was served in the execution petition.

The petitioner was proceeded exparte on 17.10.2000, exparte decree was passed on 8.7.2002. In the application for setting aside exparte decree he has alleged that he was not served personally, this has been proved wrong. The limitation for filing application for setting aside exparte decree under Article 123 is 30 days, which will start from the date of decree, i.e., 8.7.2002. The petitioner has not filed an application for condonation of delay in setting aside exparte decree. The suit was decree on 8.7.2002 and petitioner has filed an application for setting aside the decree on 8.3.2006 more than 31/2 years after the exparte decree. The learned counsel for the petitioner has submitted that there is an arbitration clause in the agreement and the suit could not have been decreed. There is no material on record in support of this contention, moreover, even if there is an arbitration clause, it cannot be said that decree passed by the civil court is without jurisdiction.

The two courts below have rightly appreciated the material on record. There is no error of jurisdiction. In revision, the re-appreciation of evidence is not permissible. The petitioner has failed to make out a case that impugned order is perverse. In view of above discussion, there is no merit in the petition, hence the same is dismissed, so also all pending application(s).