Salekha Khatoon and Dilsher Khan vs Md. Reyaz Khan

Poonam Srivastav, J.—Heard learned Counsel for the revisionist.

The instant civil revision has been preferred challenging the order dated 24th January, 2011 passed by the Additional District Judge, Fast Track Court No. 2, Hazaribagh in Miscellaneous Appeal No. 13 of 2009 whereby the ex parte decree dated 18th April, 2006 was passed and the decree signed on 21st April, 2006 was quashed.

Eviction Suit No. 15 of 2004 was instituted against the Petitioners-opposite parties who are the tenants. The suit was decreed ex parte. The admitted position is that the summons were served by the process server on the wife of the Defendant, who is not a party to the suit. She denied receipt of summons whatsoever and clearly stated that the summons were never served to the Defendant personally, whereas the date of knowledge as asserted by opposite party is 20th February, 2008. The Defendant-opposite party applied for certified copy of the judgment through Clerk Kundan Kumar who is a clerk of some Advocate. He has also deposed that he is not registered under any particular Advocate but he performs miscellaneous work as and when entrusted by the litigant or any Advocate, and in this case, he was personally known to the Defendant and he has applied and obtained the certified copy of the judgment.

The learned court, while allowing the application under Order IX Rule 13 of the Code of Civil Procedure, recorded a finding that the date of knowledge was 22nd April, 2008 and, therefore, treated the application within the period of limitation. The objection of the learned Counsel is primarily on the ground that it was an application to set aside the order and ex parte decree at a very belated stage and no application u/s 5 of the Indian Limitation Act was moved for condonation of delay. In view of the decision of the Apex Court in the case of Mahabir Singh v. Subhash and Ors. (2008 (1) JLJR 75), the application was not maintainable by itself without an application for condonation of delay. The learned Counsel has stressed on the fact that the tenant had knowledge althrough but he was avoiding service of summons intentionally and deliberately. He did not appear in the court with the purpose to delay the proceedings.

I am conscious of the fact that while exercising jurisdiction u/s 115 of the Code of Civil Procedure, this Court cannot enter into the relm of appraisal of the evidence and enter into scrutiny of fact and try to interfere with such findings. Since the finding is specific and clear about the date of knowledge being one which is accepted by the court below and the court calculated the period of limitation from the date of knowledge. The court exercised its discretion in favor of the Defendant-Appellant and was of the view that the application is within time. There was no occasion for the court to insist for an application u/s 5 of the Limitation Act for condonation of delay. Thus, in my view, the decision relied by the learned Counsel is of no consequence and assistance to the facts of the instant case.

While allowing the application of the Defendant-opposite party and setting aside the ex parte decree, the Additional District Judge, fast Track Court, Hazaribagh has given a well reasoned order which, in my view, does not call for any interference especially when there is no error in exercise of jurisdiction vested in the court below. I am not inclined to interfere in the discretion exercised by the court below. Therefore, in my view, the instant civil revision is devoid of merits and it is accordingly dismissed.