Singh Vs. Subhash & Ors  Insc 1064 (12 October 2007)
Sinha & Harjit Singh Bedi
out of SLP (C) No.9325 of 2005) S.B. Sinha, J.
Appellant is before us being aggrieved by and dissatisfied with a judgment and
order dated 14.2.2005 passed by the High Court of Punjab and Haryana in Civil
Revision Petition No.5999 of 2003 whereby and whereunder the Revision
Application filed by the first respondent herein was allowed.
Appellant filed a civil suit on or about 6.4.1985. Summons of the suit were
served upon the first respondent. He did not appear. An ex parte decree was
passed against him on 19.2.1986. An application for mutation on the basis
thereof was filed which was allowed on 07.03.1996. Allegedly, the first
respondent having come to know about passing of the said ex parte decree on 03.02.1997,
filed an application on 07.02.1997 for setting aside the same, in terms of
Order IX Rule 13 of the Code of Civil Procedure. The learned Trial Judge, by
reason of an order dated 28.07.2000, dismissed the said application, inter alia,
holding that summons had been duly served upon the first respondent. It was
furthermore noticed that the first respondent herein, while examining himself
in the said proceedings under Order IX Rule 13 of the Code of Civil Procedure
in his cross-examination, admitted that one and a half year prior to filing of
the said application, he and his brother approached Dharam Singh for getting
the judgment and decree set aside but he negated their plea.
appeal was preferred thereagainst. The Appellate Court also affirmed the said
finding holding :
this case, Ex.A1 to Ex.A3 are the record of ownership which is not disputed.
Ex. R3 I the copy of summon which clearly shows that Subhash refused to accept
the service of summons. It also shows that the copy of summons was also affixed
on his house. This report is duly attested by clerk of Court as per Ex.R4/B and
affidavit has also been given by Jogi Ram process server and affidavit has also
been given by Jogi Ramprocess server and Subhash was to appear in court on
7.5.85 but he did not appear in the court and then the court has ordered for
substituted service. But after munadi effected in the village also, the
defendant failed to appear in court as per Ex.R1, Ex.R2 is the report of Ram Mehar,
process server who got effected the munadi.
doubt Nand Lal Chjowkidar has denied his thumb impression but it carried no
help to the defendant in view of the statement of RW-1 Ram Mehar, process
is no report on the file that the summons does not bear the thumb impression of
Nand Lal Chowkidar.
of PW2 Nand Lal is self contradictory as he has pleaded that he has no
knowledge that the process server has affixed the copy of summons on the house
of Subhas. He has also stated that he has no knowledge that about ten years
back court officials brought this summon to him. He has shown his ignorance
about the pendency of the case. He has also shown his ignorance about the munadi
effected by him twelve years back. He has even not been able to tell that he
was shown as a witness.
is no reason to disbelieve the statement of Ram Mehar, process server with
regard to the report of refusal of Subhas, appellant RW-2 Dilbag Rai Jain has
also proved that the summon were duly executed upon the defendant who refused
to accept the same. So there is no illegality or irregularity in thie service
the learned trial court has given double opportunity not only after the refusal
by the defendant to appear in the court but as well as by getting the defendant
served through munadi. Since the defendant intentionally did not appear in the
court so the learned trial court has rightly passed the ex parte judgment and
decree dated 19.2.86.
Admittedly the decree under challenge was passed in the year 1986 while the
present application for setting aside the ex parte judgment and decree was
filed on 6.2.97 i.e. almost after eleven years of passing of the impugned
decree. So far as the delay in filing the application is concerned, no doubt
the defendant has tried to prove that he came to know recently about the
decision of the case but this version is not tanable when PW1 Ram Mehar,
process served has categorically stated that about 1-1/2 years back he alongwith
his brother, went to Dharam Singh and Dharam Singh told them that they have got
no concern with the plot in question and that he would not set aside the
decree. He has also stated that he has told his relatives that 10/11 days prior
filing this application. This clearly shows that the defendant was well aware
of the decree in question and he can file the present application within one
month of the passing of the decree. He is to explain each days delay. So it can
be safely eld that the application is time barred. Thus, the findings of the
learned trial court recorded under issue No.1 and 2 are hereby affirmed and
these issues are decided against the appellant-defendant and in favour of the
Revision Application filed thereagainst by the first respondent herein was
allowed by the High Court. The High Court in the impugned judgment opined that
the appellant had played fraud on the Court as neither the summons were
properly served, nor the publication was made in the newspapers. Order V Rule
19A of the Code of Civil Procedure, which, according to the High Court, could
have been taken recourse to, had also not been resorted to. Adverse comments
were also made by the High Court in regard to the application for mutation
filed by the appellant only after 10 years, i.e., in the year 1996.
approach of the High Court, in our opinion, was not correct.
exists a presumption that the official act was been done in ordinary course of
business. Admittedly, an ex parte decree was passed. Defendant for getting it
set aside was required to establish that either no summons was served on him or
he had sufficient cause for remaining absent on the date fixed for hearing the
suit ex parte.
Article 123 of the Limitation Act, 1963 provides for 30 days time for filing
such an application. The said provision reads thus :
of application Period of Time from which Limitation period begins to run 123.
To set aside a decree Thirty days The date of decree or passed ex parte or to
where the summons re-hear an appeal decreed or notice was not duly or heard ex parte.
Served, when the applicant had Explanation: For the knowledge of the Purpose of
this article, decree.
service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of
1908) shall not be deemed to be due service.
Thus, even assuming for the sake of argument that no proper step was taken by
the appellant herein for service of summons upon the respondent and/or the
service of summons was irregular, evidently, it was for the
defendant-respondent to establish as to when he came to know about the passing
of the ex parte decree. Even in his cross-examination, the first respondent has
categorically admitted that he had approached the appellant herein for not
giving effect thereto one and half year prior to filing of the application,
and, thus, he must be deemed to have knowledge about passing of the said ex parte
decree. The period of limitation would, thus, be reckoned from that day. As the
application under Order IX Rule 13 of the Code of Civil Procedure was filed one
and a half year after the first respondent came to know about passing of the ex
parte decree in the suit, the said application evidently was barred by
terms of Section 3 of the Limitation Act, 1963, no court shall have
jurisdiction to entertain any suit or application if the same has been filed
after expiry of the period of limitation. The High Court could not have ignored
the said jurisdictional fact.
the reasons aforementioned, the impugned judgment cannot be sustained. It is
set aside accordingly. The appeal is allowed with costs. The counsels fee
assessed at Rs.10,000/- (Rupees ten thousand only).