Ram Narain Singh vs Smt. Gurinder Kaur and Another

R.L. Anand, J.—This is a civil revision and has been directed against the order dated 17.12.1981 passed by the Court of Additional District

Judge, Kurukshetra, who affirmed the order dated 16.1.1980 passed by the Court of Sub Judge Ist Class, Kurukshetra who dismissed the

application under Order 9 Rule 13 of the CPC for setting aside the exparte decree passed in civil suit No. 298 of 1972 on 20.10.1972.

The facts of the case can be described in the following manner:

Earlier Smt. Bhagwan Kaur filed a suit for possession of the agricultural land situated in village Hairpur, Tehsil Thanesar, District Karnal against her

three sons on 10.5.1972 and she obtained an ex parte decree against defendant No. 3 Ram Narain and others. For setting aside the ex parte

judgment and decree dated 20.10.1972 applicant Ram Narain who was defendant No. 3 in the main suit first filed an application under Order 9

Rule 13 of the CPC on 7.6.1973 in the Court of Sub Judge 1st Class, Karnal and he averred that he was not duly served in the main suit and as

such the ex parte order passed during the pendency of the suit and the ex parte decree are illegal. He was not duly served for 17.6.1972 or for

17.8.1972. Accordingly, he did not know about the institution of the suit filed against him and others and he came to know about the institution of

the execution of the decree on 4.5.1973 when the Patwari Halqa went to the land in suit to deliver the possession to Smt. Bhagwan Kaur plaintiff

of the civil suit. After obtaining the knowledge of the ex parte decree, he went to the copying Agency, Kurukshetra and obtained a copy of the

decree sheet on 26.5.1973. It has been further alleged by the petitioner Ram Narain Singh that after inspecting the file he came to know that fraud

had been played on him as the attesting witness on the summons was highly interested in the plaintiff Smt. Bhagwan Kaur. Wrong report was

obtained by the decree holder in connivance with the attesting witness and process server. There was no order of affixation for 17.6.1972 nor any

affidavit had been attached along with the summons of the process server regarding the affixation proceedings. It may be mentioned here that in

fact, Ram Narain Singh filed two applications under Order 9 Rule 13 C.P.C. First on 7.6.1973 which was dismissed by the Sub Judge vide his

order dated 24.9.1973 with the following orders:

This application has been moved by Ram Narain wherein the heading of the application, the case has been shown as Bhagwan Kaur v. Kuldip

Singh, Harchand Singh and said Ram Narain. The applicant has himself made himself as respondent in this application, so, the application does not

lie in the present form and the same is rejected"".

Still another application after due correction was moved by the petitioner on the same date i.e. 24.9.1973 for setting aside the ex parte decree.

Same grounds were taken in the application dated 24.9.1973 which were earlier taken in the application dated 7.6.1973. It was repeated in the

application dated 24.9.1973 that the applicant came to know about the institution and execution of the suit on 4.5.1973 when Patwari Halqa went

to the land for the delivery of possession to Smt. Bhagwan Kaur.

Notice of the application dated 24.9.73 was given to the respondent Bhagwan Kaur who filed reply and denied the averments. She took

preliminary objections that the application is liable to be dismissed as time barred. On merits, respondent Smt. Bhagwan Kaur took the objection

that the applicant-petitioner was duly served and he was fully aware of the proceedings. It was denied by Smt. Bhagwan Kaur that any fraud was

played on the petitioner either by her or by the Court. Other defendants, who were added as proforma in the application did not give any contest

to the application under Order 9 Rule 13 CPC dated 24.9.1973.

From the above pleadings of the parties, learned trial Court framed the following issues for disposal of the application :-

1) Whether there are sufficient grounds to set aside the ex parte decree? OPA

2) Whether the application is within time? OPA

3) Relief.

The relief led evidence before the trial Court and on the conclusion of the proceeding, issue No. 1 was decided in favour of the applicant-

petitioner and it was held by the trial Court that there was no proper service. The operative portion of the order of the trial Court while disposing

of issue No. 1 in favour of the applicant runs as follows:-

It was further contended that he has produced one of the attesting witness on summons Ex.R.1 Paras Ram AW 6 to establish that no service was

effected on any of the defendants proceeded ex parte by the court even on 17.6.1972. The learned counsel for Smt. Bhagwan Kaur respondent

No. 1 frankly conceded that there is no document on record to show that two defendants proceeded ex parte vide order dated 17.8.1972

proceeding ex parte against two defendants was totally wrong and illegal order firstly on the ground that no summons at all was issued to any of the

two defendants i.e. Kuldip Singh and Ram Narain Singh and secondly, no due service was effected on any of them even if the report of Process

Server made on summons issued for 17.6.1972 (Ex.R.1) was taken into consideration. No further research is required to be made on this point

because, I am fully satisfied from the record that no summons or registered A.D. was at all sent to any of the two defendants proceeded ex parte

for 17.8.1972. It seems that the then learned Sub Judge, proceeded exparte against defendants No. 1 and 3 in civil suit on the basis of the report

dated 17.6.1972 made on summons Ex.R.1. In my earnest view, the learned Sub Judge even could not proceed ex parte on the basis of the report

Ex.R.1 because it was not due service in the eyes of law. It has no where been stated by Jagdish Chander Process Server who appeared as AW 1

and made report Ex.R.1 on the summons dated 17.6.1972 that summons delivered to one of the defendants was accompanied by a copy of the

plaint or a memorandum of statement of the alteration. He has also not stated that there was any order of affixation of the summons on the house of

defendants who refused to accept service and further that copy of the summons was also affixed on the house of the defendants who refused to

accept the service. It has been held in case (Jagan Nath etc. v. Tek Chand etc.) 1974 CLJ 328 that "" a summons shall be deemed to have been

duly served only if the summons along with the copy of the plaint or a concise statement thereof, if permitted, is served on the defendant or

tendered to him. If only summons is tendered to him or served on him, it cannot be said that there has been due service of the summons on the

defendant. Even if, it is presumed that the petitioner has been served with the summons because of his refusal to accept the registered envelope, all

that can be deemed is that he was served with the summons of the suit under Order V, Rule 1 Civil Procedure Code, but without a copy of the

plaint, which was necessary to be sent to him along with the summons under Rule 2 of Order V, in order to constitute due service. Mere service of

the summons is not synonymous with due service, as used in Order IX Rule 13 of the Code of Civil Procedure"".

In view of the above stated authority, there is no manner of doubt in my mind that order dated 17.8.1972 proceeding ex parte against

defendants No. 1 and 3 in civil suit No. 298 of 1972 was illegal, void and not binding on the petitioner. Thus there are sufficient grounds to set

aside the ex parte decree passed against the petitioner. This issue is accordingly decided in favour of the petitioner against the respondents.

However, issue No. 2 was decided against the applicant and on the strength of the findings given under issue No. 2 application under Order 9

Rule 13 C.P.C. was dismissed.

Aggrieved by the order, the present petitioner Ram Narain Singh filed appeal in the Court of Additional District Judge, Kurukshetra, who vide

order dated 17.12.1981 dismissed the appeal by passing the following operative order as contained in paras No. 7 and 8 of his judgment:-

It has been argued by the learned counsel for the applicant that the application for setting aside the ex parte decree was not barred by time, in as

much as, it was filed on 7.6.73 whereas the appellant had learned about the passing of the said decree as few days after 4.5.73. There is no force

in this submission of the learned counsel. In the application which was filed on 7.6.1973, for setting aside ex parte decree, it was specifically

mentioned that the applicant had come to know about the said decree on 4.5.1973, when the Patwari Halqa had gone to the land in suit to deliver

the possession of the same to the plaintiff. Again, in the application, which was filed on 24.9.73, the said fact was reiterated. The application

cannot now be permitted to take up the stand that he had learnt about the passing of the said decree that a few days after 4.5.73. No amount of

evidence can be looked into beyond the pleadings. Even if the first application dated 7.6.1973 is taken into consideration for the purposes of

counting the limitation, the said application was clearly barred by time, as the limitation for setting aside the ex parte decree is thirty days.

It has thus been argued by the learned counsel for the appellant that the said delay in filing the application for setting aside the ex parte decree

could have been condoned by the trial Court on the oral prayer of the appellant. It is true that the learned trial Court could have condoned the

delay in filing the said application, on the oral prayer of the appellant u/s 5 of the Limitation Act, but what is required for condoning the delay under

the said provision is that it could be done only if the party would show sufficient cause for the same, and would explain each day''s delay. In the

present case, there is nothing on the record to indicate if the appellant had any ''sufficient cause'' for not filing the application within 30 days of the

date of the knowledge i.e. 4.5.73, nor there is anything on the record to explain each day''s delay in not filing the application within limitation.

Accordingly, the trail court was perfectly justified in deciding issue No. 2 against the appellant.

Aggrieved by the said order, the present revision which is being disposed of with the assistance of Shri V.K. Jain, Sr. Advocate, assisted by

Shri Raman Sharma, appearing on behalf of the petitioner and Shri Deepak Agnihotri, Advocate who appeared on behalf of the respondent.

For brevity sake, it may be mentioned that ex parte decree was passed on 20.10.1972. Issue No. 1 has been decided in favour of the

applicant. As per Article 123 of the Limitation Act, 1963, application for setting aside the ex parte decree could be made within 30 days from the

date of the knowledge of the decree. It is the specific case of the applicant in both the applications dated 7.6.73 which was dismissed on

24.9.1973 and in the application dated 24.9.73 that he came to know about the institution of the suit and execution of the decree on 4.5.73 when

the Patwari Halqa went to the suit land in order to deliver the possession to the decree holder. In these circumstances, the period of limitation of 30

days would run from 4.5.73 and not from any subsequent date as argued by Shri Jain before this Court. The learned counsel for the petitioner

submitted that his client came to know about the decree on 28.5.73/31.5.73 when his client obtained the copies of roznamcha and when he

inspected the file of the main case. This submission of Shri Jain cannot be accepted in view of the categorical averments made by the applicant on

two occasions while giving two applications under Order 9 Rule 13 C.P.C. Even the oral statement of the applicant which is against the pleadings

cannot be looked into on account of the settled law that no amount of evidence can be weighed which is beyond the pleadings of the parties. This

Court has the occasion to have a glance to both original applications dated 7.6.73 and 24.9.73. In fact, application dated 7.6.73 was typed out on

4.6.73 as it would be evident from seeing the date, which was typed as 4.6.73. This date 4.6.73 has been corrected with hand so as to be read as

7.6.73. This clearly suggests that even on 4.6.73. The petitioner was aware that the ex parte decree has been obtained by the decree holder

against him on 22.10.1972. It is a settled law that each day of the limitation is to be explained. However, if any law is required on this point 1973

P.L.J. 611, Charanjit Singh v. The Sub Divisional Officer, is an authority which can be read with advantage. It has been held in this situation that if

the period of limitation expires each day''s delay has to be explained. The application could be filed under Order 9 Rule 13 C.P.C. according to

Article 123 of the Limitation Act on 4.6.73. In the first application dated 7.6.73 there is no averments why the application was filed after two

days'' delay on 7.6.1973. Even in the supporting affidavit attached with that application no sufficient cause has been shown. In fact, the petitioner

had prepared himself to file the application on 4.6.1973 yet he did not bother that in case he did not file the application on that day, he would be

loosing a very valuable right. When a litigant is negligent and is not bothered about his rights, for such a litigant the law cannot come to the rescue

because law always helps vigilant litigant and not otherwise. The application dated 7.6.1973 continued up to 24.9.1973. At no point of time the

applicant thought proper to make an application before the Court for the amendment. He allowed this application to be dismissed on 24.9.1973 by

filing a fresh one. Even if, it is assumed for the sake of argument that the 2nd application under Order 9 Rule 13 C.P.C. was in continuation of the

first one yet the petitioner has to explain when he could not file the first application within the statutory period of 30 days which must be calculated

w.e.f. 4.5.1973.

Faced with the above situation, the learned counsel for the petitioner raised manifold arguments and the first in time was that it has been

admitted by the trial Court itself while returning findings under issue No. 1 that there was no due service. In these circumstances, the ex parte order

was void and there is no limitation for setting aside a decree the foundation of which was a void order. The argument is not appealable because the

challenge given in the application is to the decree dated 20.10.1972 regarding which; as per the case of the applicant, he got knowledge on 4.5.73.

The second submission of Shri Jain was that the mistake was on the part of the court when it proceeded with the suit against the applicant in spite

of the fact that he was not duly served for that date as conceded by the contesting respondent. Therefore, it was the duty on the part of the Court

to rectify its own mistake by setting aside the ex parte decree. It was also submitted by Shri Jain that irrespective of the fact that the applicant did

not file an application u/s 5 of the Limitation Act for the condonation of delay of 2 days in filing the first application under Order 9 Rule 13 C.P.C.,

the delay could be condoned even on the oral prayer which was made before the trial Court and the trial Court could act upon the affidavit which

was attached with the application under Order 9 Rule 13 C.P.C. I have considered all the submissions raised by the learned counsel for the

applicant and have come to this conclusion that none of his contentions cuts ice. The Legislature in its wisdom while prescribing limitation under

Article 123 had gathered both the eventualities when a defendant is duly served and when a defendant is not duly served. In the present case it is

the findings of the trial Court that there was no due service upon defendant No. 3 (present petitioner) and for this reason the petitioner could file

the application for setting aside the ex parte decree under Order 9 Rule 13 C.P.C. within 30 days from the date of the knowledge. It is immaterial

when the petitioner gets the knowledge of the decree but once he conceals the knowledge, he has to come within limitation. It is the case of the

petitioner himself that he got the knowledge on 4.5.73 and in these circumstances he cannot put blame upon the Court that it proceeded upon a

wrong report or that it committed illegality in proceeding exparte. No doubt even on oral prayer relief can be granted whehter in a main suit or in

the application provided the ingredients of the section for which the relief has been claimed must be made out. A perusal of the application under

Order 9 Rule 13 C.P.C. filed on 7.6.73 does not indicate that the applicant gave any sufficient reasons for the delay of even 2 days as to what

prevented him from not filing the application on 4.6.73 when it was, in fact, typed out on the same day. In the absence of any case made out even

on the oral prayer the relief could not be granted as claimed by Shri Jain before this Court.

Now I proceed to discuss with the case law which has been cited by the learned counsel for the petitioner. The first citation relied upon by the

learned counsel is (1990) P.L.R. 152, Sarwan Kumar v. Shyam Mangla. This judgment lays down that order having been passed at the back of

the petitioner without summoning him would be void order and in these circumstances the question of limitation does not arise. I am not in a

position to persuade myself with the ratio of this authority in the light of the authority of the Hon''ble Supreme Court in State of Punjab and Others

Vs. Gurdev Singh, , State of Punjab v. Gurdev Singh and Ashok Kumar, where the Hon''ble Supreme Court was pleased to hold that even a void

order can only be set aside within the statutory period of limitation. If there was no due service, the interim order proceeding ex parte against the

present petitioner had merged into the decree which was being sought to be set aside under Order 9 Rule 13 C.P.C.

The 2nd authority relied upon by the learned counsel for the petitioner is Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram,

Ahmedabad and Others, in which it as held that formal application for a relief u/s 5 of the Limitation Act is not necessary. I have already stated

above that even on oral request the relief can be granted by the Court provided the applicant must make out a case. In the present case, there is

not an iota of averments in the main application under Order 9 Rule 13 C.P.C. why the application was filed on 7.6.73 instead of 4.6.73. My

attention has also been invited to Smt. Shakuntala Devi Vs. Banwari Lal and Others, . It is always a question of fact whether in a particular case

sufficient cause is made out or not. No doubt, the provisions of Limitation Act especially section 5 should be read liberally so as to advance the

cause of justice but this Court cannot forgive a litigant who does not bother for the agitation of his rights within the prescribed period. In the cited

case sufficient case was made out in the affidavit so as to set aside the abatement proceedings. The record of the present cause is barren to that

effect. Shri Jain also drew my attention to Devi Dayal Textile Co. and Another Vs. Nandlal, and Ors. Unniraman Vs. Padmanabhan and Another,

Rajiv Lochan Pandey Vs. Madan Gopal Sharma and Others, .

All these authorities are beyond the issue to the proved facts, which are that the petitioner got the knowledge of the decree on 4.5.73. He

moved his first application on 7.6.73 though it was prepared on 4.6.73, the application was barred by time. The petitioner could not explain why

he did not file the application on 4.6.73 within limitation. His first application dated 7.6.73 was dismissed on 24.9.73 on which date he filed the

2nd application under Order 9 Rule 13 C.P.C. though legally not maintainable.

In this view of the matter, I do not see any infirmity in the impugned orders of the trial Court and of the first appellate court who vide their well

reasoned orders dismissed the application under order 9 Rule 13 C.P.C. Resultantly, this Court is also of the view that there is no merit in the

present revision which is also hereby dismissed leaving the parties to bear their own costs.