M/s Swastika Textiles Agency vs Tilak Raj

Amar Dutt, J.—This revision petition seeks to challenge the judgment dated 9.1.1984 passed by the District Judge. Amritsar. dismissing the appeal against the order dated 13.9.1983 passed by the Sub Judge 1st Class. Amritsar, refusing to set aside an ex parte decree passed against the petitioner.

The facts giving rise to the filing of the present revision petition are that a suit for recovery of a sum of Rs.6,500/- was filed against the petitioner. On 11.4.1980, the same was decreed by the Sub Judge 1st Class, Amritsar, and on 15.11.1980 an application was moved under Order 9 Rule 13, CPC assailing the judgment and decree on the grounds that the petitioner was never served and that the Courts at Amritsar had no territorial jurisdiction to try the case. It was also submitted that the plaintiff had no locus stands to file the suit and the decree had been obtained by fraud. The firm, it was stated, had come to know about the decree dated 11.4.1980 on 1.10.1980 and after obtaining copies of the decree, filed the application for setting aside the ex parte decree on 15.11.1980.

The application was contested as time barred. It was further contended that the petitioner had been duly served by means of a proclamation in the newspaper because he could not be served through ordinary process. The parties went to trial on the following issues :-

Whether the ex parte decree dated 11.4.1980 is liable to be set aside ? OPR

Whether the application is within time ? OPA.

Relief.

and after hearing arguments, the trial Court had come to the conclusion that the applicant had come to know of the pendency of the suit on 9.11.1979 and had filed the application for setting aside the ex parte decree on 15.11.1980 and as such the application was clearly time barred. The application was, therefore, dismissed.

The appeal before the lower appellate Court also met with the same fate. Hence the revision petition Since Sh. M.S. Liberhan. counsel for the petitioner had been elevated I had directed the actual date notices be issued to the petitioner and in spite of this having been done, no one has appeared for the petitioner in Court to pursue the matter.

I have heard Sh. Ramesh Sharma, Advocate for Mr. A.S. Kalra, Advocate, for the respondent and have gone through the file and considered the submissions made by him.

The petitioner, in this case, is denying the knowledge of the publication of the notice in the newspaper because according to him, the newspaper Daily Samaj, Ludhiana, had no circulation at Saharanpur. However, the respondent while appearing as RWI had produced on the record a copy of the written statement filed by him in a suit instituted against the plaintiff by the petitioner. In para 7 thereof, it is clearly indicated by Tilak Raj that he had already filed a civil suit in the Court at Amritsar titled Tilak Raj v. Swastik Textiles, which was pending and the suit filed by Swastik Textiles at Saharanpur was liable to be stayed. From this written statement, which was filed on 9.11.1979. the petitioner would naturally have come to know of the pendency of the suit filed by Tilak Raj and, therefore, when the application for setting aside the ex parte decree was filed on 15.11.1980. the same was clearly time barred. The Courts below had. therefore, correctly come to the conclusion while disposing of the issues framed that the application for setting aside the ex parte decree was time barred and hence had to be dismissed.

There is. therefore, no merit in this revision petition and the same is dismissed.