Barji Bai and Others vs Laxman

Dr. Vineet Kothari, J—The present revision petition has been filed by the appellants, who were the defendants in a suit filed for specific performance of the contract and permanent injunction, against the order dated 04.10.2013 passed by the learned Additional District Judge No. 3, Chittorgarh dismissing the application filed under Section 5 of the Limitation Act and as a consequence, the first appeal filed by the defendants was also dismissed.

The learned First Appellate Court of Additional District Judge No. 3, Chittorgarh has assigned the following reasons for rejection of the application of the defendants filed under Section 5 of the Limitation Act, which are as under:--

The decree was passed by the learned Trial Court namely, Civil Judge (Junior Division), Gangraar, District Chittorgarh, ex-parte against the defendants on 24.12.2011 in a suit for specific performance and permanent injunction namely, Civil Suit No. 11/2011 "Laxman v. Ram Kanya & Anr." The suit in question was filed by the plaintiff in respect of the suit land situated at village Kansadi, Patwar Halka-Undawa, Tehsil Gangraar, District Chittorgarh measuring 2 rakba 0.78 hectares which was agreed to be sold by the seller-late Madhu S/o Dhanna Chamar, the father of the defendant No. 1-Ramkanya and the husband of the defendant No. 2-Barji Bai on an Agreement to Sell dated 16.03.1991 for a consideration of Rs. 3,000/- only.

The learned counsel Mr. Ashwini Kumar Babel appearing for the petitioners-defendants urged that since the summons were served upon the defendants without accompanying the copy of the plaint, therefore, service of summons cannot be treated as sufficient service on the defendants as per Order 5 Rule 2 of the Code of Civil Procedure. The learned counsel relied upon a decision of the Hon''ble Supreme Court in the case of Nahar Enterprises Vs. Hyderabad Allwyn Ltd. and Another, (2007) 4 JT 218 : (2007) 3 SCALE 461 : (2007) 9 SCC 466 : (2007) 2 SCR 413 and submitted that in the absence of service of the plaint with the summons, the learned Trial Court was not justified in decreeing the suit ex-parte against the defendants. The learned counsel also submitted that in the present case, the plaintiff had filed the suit for specific performance of the alleged Agreement to Sell of the year 1991 executed in his favour by the father and husband of the defendants, in the year 2011 and against the ex-parte decree, even the appeal preferred by the present petitioners was dismissed though that was preferred with the delay of 136 days only and for which, there were sufficient reasons mentioned by the petitioner in the application filed under Section 5 of the Limitation Act namely, lack of knowledge of passing of the ex-parte decree and late communication of the decree to the defendants.

On the other hand, the learned counsel Mr. Hari Singh for Mr. Manish Pitaliya appearing for the respondent-plaintiff supported the impugned order dated 04.10.2013 and the ex-parte decree dated 24.12.2011 and even submitted that the present revision petition is not maintainable against the rejection of the application filed under Section 5 of the Limitation Act and consequential rejection of the first appeal of the defendants.

Having heard the learned counsels for the parties and upon perusal of the material placed on record, including the reasons given by the learned Trial Court in impugned order dated 04.10.2013 and the ex-parte decree dated 24.12.2011, this Court is of the opinion that the ex-parte in the present case can not be countenanced inasmuch as because of the reason that the suit in question for specific performance of the alleged Agreement to Sell of the year 1991 was filed by the plaintiff after a long period of 20 years in 2011 and that too, in respect of the land for which admittedly a paltry sum of Rs. 3,000/- only was paid. It is noticed that the ex-parte decree was passed by the learned Trial Court without proper service of the summons on the defendants, as required under Order 5 Rule 2 of the Code of Civil Procedure, because in the present case, admittedly, the summons were received by the defendants without the copy of the plaint and that too, the said ex-parte decree was even affirmed by the First Appellate Court without allowing the defendants to put up their case on merits. The short delay of 136 days was not such a huge delay which could not have been condoned by the First Appellate Court but the same has not been condoned and thereby, the defendants were deprived of their right to defend the case on merits. Therefore, in the opinion of this Court and in the circumstances of the case, the present revision petition filed by the petitioners-defendants deserves to be allowed and the matter deserves to be remanded back to the learned Trial Court for a fresh trial of the suit.

Accordingly and in view of the above, the present revision petition filed on behalf of the petitioner No. 1 Barji Bai W/o late Madhu Chamar and petitioner No. 2 Ram Kanya D/o late Madhu Chamar stands allowed. The impugned orders and decrees dated 04.10.2013 of the ADJ No. 3, Chittorgarh and dated 24.12.2011 of Civil Judge (JD), Gangraar, Chittorgarh are set aside and the matter is restored back for trial afresh in accordance with law. For the purpose of appearance, the parties are directed to appear in the first instance before the learned Trial Court on 11.08.2015 and the written statement may be filed by the defendants within a period of two months from that date. In the circumstances of the case, the Trial Court is requested to expedite the trial of the suit. No costs. A copy of this order be sent to the concerned parties and the learned court below forthwith.