Shankar vs Ramji Lal and others

D.V. Sehgal, J.—This revision petition by Shankar son of Harnama resident of village Kakrala Gujran, Tehsil Guhala, District Kurukshetra, is addressed against the judgment in appeal by the learned Additional District Judge, Karnal, dated 1.6.1978 whereby the appeal of the Petitioner from the order dated 3.12.1975 of Sub Judge 1st Class, Kaithal dismissing the application of the Petitioner under Order IX, Rule 13, C.p.C. was rejected Ramji Lal and another filed a suit against Shanker, the present Petitioner, and one Bhaga for relief of mandatory and prohibitory injunction The Petitioner and Bhaga filed a joint written statement and they were represented by Sh. Raghvinder Singh, Advocate On 24.4.1974 when the case came up for hearing before the trial Court the Learned Counsel for the Plaintiffs stated that a compromise had been arrived at between the Plaintiffs and the Defendants. However, Sh. Raghvinder Singh, counsel for the Defendants, was not present as he was stated to be out of station. The case was, therefore, adjourned to 25.4.1974 for recording of compromise if there was any or else for the evidence of the Defendants. On 2Mb April, 1974 Sh. Raghvinder Singh appeared in the Court and pleaded no instructions on behalf of Shankar, the present Petitioner. He, however, admitted that a compromise had been effected between the Plaintiffs and Bhaga Defendant. Thereupon the Court recorded the compromise produced ex-parte against Shankar, the present Petitioner, and passed a decree for mandatory and prohibitory injunction against Bhaga Defendant on the basis of the compromise and an ex parte decree to the same effect against Shankar, the present Petitioner.

The Petitioner filed an application under order IX, Rule 13 CPC for setting aside the ex-parte decree on 18.7.1974. In para 3 of this application the Petitioner averred that he received a notice for appearance from the Court for 15 6 1974, in the execution proceedings and on that day he came to know that the ex-parte decree had been passed against him. The Petitioner, however, did not categorically state the date on which he received the notice for appearance in court on 13.6.1974. The learned trial court as also the learned Additional District Judge in appeal have held on the basis of the fasts found and the evidence available that there was no sufficient cause for setting aside the ex parte decree and it has been farther held that the application under Order IX, Rule 13, CPC was barred by limitation.

Sh. S.S. Rathore, the Learned Counsel for the Petitioner, has contended that the Petitioner being an illiterate he could not make mention of specific date on which he received notice from Court for 15.6.1974 in execution proceedings. He further contended that although in the application and in the affidavit accompanying the same it had been mentioned that the Petitioner was taken ill on 17.7 1974, the mere fact that no evidence to support this averment was produced should not lead to discarding this plea of the Petitioner. On going through the record. I find that the Petitioner miserably failed to Drove the date of his knowledge of the ex parte decree. Resultantly, since the exprate decree had been passed on 25.4.1974 and the application for setting aside the same was moved on 18.7.1974, the application was clearly barred by time. The Petitioner himself has admitted in the winess-box that be was earlier attending the hearings in the suit on different dates So, his contention that hit counsel had advised him not to come to the Court and as a result of this advice he did not appear in the court on 25.4 1974 does not appear to be tenable. There is no ground available for interference in revisional jurisdiction with the orders pasted by the trial Court and that of the learned Additional District Judge in appeal. Consequently, this revision petition is dismissed with no order as to rests.