9911796707
TMI Blog1996 (12) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... dge 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal and Ors.. 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 AIR 1977 Delhi 7 Devi Dayal Textile Company and Ors. v. Nand Lal, 1979 P.L.J. 48 Partap Singh v. State of Haryana and Ors., AIR 1988 Kerala 257 Unniraman v. Padmanabhan and anr., AIR 1989 Allahabad 45 Rajiv Lochan Pandey v. Madan Gopal Sharma and ors.. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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