IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.54/2010 Reserved on: 20.5.2011 Decided on:27.5. 2011 _____________________________________________ Tashi. …Petitioner. Versus Roop Bati and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. T.S. Chauhan, Advocate. For the Respondents: Mr. Jyotsna Rewal Dua, Advocate, for respondent No.1. Mr. G.S. Rathore, Advocate for respondent No.2. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the order dated 22.4.2010, passed by the learned Additional District Judge, Fast Track Court, Kullu in CMP No. 35/2010. 2. Material facts necessary for the adjudication of this petition are that the respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) instituted a suit for specific performance of agreement to sell dated 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 8.10.2003. Petitioner-defendant (hereinafter referred to as ‘defendant’ for convenience sake) was proceeded ex parte on 20.2.2006. An ex parte decree was passed by the trial court on 26.12.2006. Thereafter, defendant, namely, Tashi moved an application under order 9 rule 13 of the Code of Civil Procedure to set aside the ex parte decree dated 26.12.2006 passed in civil suit No.133/2005 alongwith application, under section 5 read with section 14 of the Limitation Act. Plaintiff filed reply to the application under section 5 read with section 14 of the Limitation Act preferred by defendant Tashi. According to the plaintiff, defendant-Tashi was aware of the ex parte decree passed against him. Defendant appeared in the execution petition bearing No. 15-X/2007 before the executing court on 12.9.2007. Application for setting aside the ex parte decree was preferred by the defendant Tashi on 22.4.2008. Learned Civil Judge (Senior Division) dismissed C.M.A. No. 75-VI of 2008 on 31.8.2009. Civil Judge (Senior Division) has returned a finding that defendant knew about the judgment and decree passed by the trial court in Civil Suit No. 133/2005. In fact, defendant Tashi had appeared in the court on 12.9.2007 in the execution petition pursuant to the summons he had received on 31.8.2007. He had been continuously appearing through his counsel Sh. G.S. Negi 3 since 12.9.2007. There was delay of 8 months in filing the application under order 9 rule 13 of the Code of Civil Procedure for setting aside ex parte decree dated 26.12.2006 rendered in Civil Suit No. 133/2005. 3. Mr. T.S. Chauhan has strenuously argued that his client was preoccupied due to illness of his wife. She was sick between May, 2006 to July, 2007. She expired on 19.8.2007. 4. The explanation given by defendant Tashi that his counsel has not disclosed about the proceedings has rightly been ignored by the trial court. 5. Defendant Tashi thereafter filed an appeal before the learned Additional District Judge, Fast Track Court, Kullu stating therein that he came to know about the order dated 31.8.2009 only in the second week of February, 2010. Thereafter, he contacted his counsel when he came to know that the court has dismissed his application under section 5 read with section 14 of the Limitation Act. He procured the certified copy of order dated 31.8.2009 on 4.3.2010. In these circumstances, he filed an appeal on 6.3.2010. Defendant had also filed an application under section 5 of the Limitation Act for condonation of delay in filing the appeal. It was primarily contended that he was away to Kinnaur in connection with his business and he came to know about the order only in the 4 second week of February, 2010, as noticed above. Learned Additional District Judge, Fast Track Court dismissed the application on 22.4.2010. Hence, this revision petition. 6. Defendant Tashi has been proceeded ex parte on 20.2.2006. Ex parte decree was passed against him on 26.12.2006. His application for setting aside the judgment and decree dated 26.12.2006 has been rejected by the Civil Judge (Senior Division) on 31.8.2009. The plea of defendant Tashi that his counsel has not disclosed about the ex parte judgment and decree has not been accepted by the trial court. He was served with a notice in execution petition No.15- X/2007. He had appeared on 12.9.2007 and had been appearing through his counsel. However, the application was preferred for setting aside the judgment and decree only on 22.4.2008. There is no explanation of delay for setting aside the ex parte decree. 7. The application, i.e. C.M.A. No. 75-VI of 2008 was dismissed on 31.8.2009. The order was passed in the presence of his counsel Sanjay Thakur. His explanation that he was not aware of the decision dated 31.8.2009 cannot be accepted. Defendant Tashi has not established how he came to know about the order dated 31.8.2009 in the second week of February, 2000. In this case, the application was preferred 5 before the Additional District Judge, Kullu on 6.3.2010. The defendant has also not explained the delay from second week of February, 2010 to 6.3.2010. There was delay of more than 150 days in preferring the appeal against the order dated 31.8.2009. 8. It is settled law by now that the Courts have to be liberal while considering application under section 5 of the Limitation Act. However, the Courts cannot be oblivious to unexplained inordinate delay. Their Lordships of the Hon’ble Supreme Court in Lanka Venkateswarlu (Dead) by LRs versus State of Andhra Pradesh and others, (2011) 4 SCC 363 have held that discretion under section 5 of the Limitation Act should be exercised in a systematic manner informed by reason. Liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay. 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Justice Rajiv Sharma), Judge. 27.5. 2011. *awasthi*