IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:26/2011 Reserved on: 30.6.2011 Decided on:8.7.2011 _____________________________________________ Geeta Ram. …Petitioner. Versus Punjab Singh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Rama Kant Sharma, Advocate. For the Respondent : Mr. Rakesh Raghuvanshi, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the order dated 31.12.2010 passed by the learned Civil Judge (Senior Division), Court No. 1, Paonta Sahib, District Sirmaur in civil miscellaneous application No. 143/6 of 2008. 2. Material facts necessary for the adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as “petitioner” for convenience 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 sake) instituted a suit against the respondent-defendant (hereinafter referred to as “respondent” for convenience sake). Respondent was proceeded ex parte on 17.12.2007. Thereafter, ex parte decree was passed against the respondent by the trial court on 6.6.2008. Respondent moved an application under order 9 rule 13 of the Code of Civil Procedure alongwith application under section 5 of the Limitation Act for setting aside the ex parte decree dated 6.6.2008. These applications have been placed on record vide Annexures P-1 and P-3, respectively. Petitioner filed reply to the application under order 9 rule 13 of the Code of Civil Procedure vide Annexure P-2. The learned Civil Judge (Senior Division) allowed the Civil Miscellaneous Application No. 143/6 of 2008 on 31.12.2010 and ex parte decree dated 6.6.2008 passed in Civil Suit No. 129/1 of 2007 was set aside. Hence, the present petition. 3. Mr. Ramakant Sharma has vehemently argued that the trial court has failed to exercise the jurisdiction vested in it and the jurisdiction which has been exercised is the result of material illegality and irregularity. 4. Mr. Rakesh Raghuvanshi has supported the order dated 31.12.2010. 3 5. I have heard the learned counsel for the parties and have perused the record carefully. 6. Respondent was proceeded ex parte on 17.12.2007. An ex parte decree was passed on 6.6.2008. The present application under order 9 rule 13 of the Code of Civil Procedure was filed on 5.9.2008. The issues were framed by the learned Civil Judge (Senior Division) on 9.6.2009. Respondent has appeared as AW-1 and his wife has appeared as AW-2. Ram Swaroop, Bailiff has been examined as RW-1. Petitioner has led his evidence by way of affidavit Ex.RW-2/A. 7. According to the averments contained in para 7 of the application filed under section 5 of the Limitation Act, respondent came to know about the judgment and decree on 19.8.2008 when the petitioner came to his house and showed him the judgment and decree and called upon him for the execution and registration of the sale deed. Thereafter, he inspected the court record and obtained copies of the judgment and decree and the order sheet of the case file and filed the present application under order 9 rule 13 of the Code of Civil Procedure. According to him, the ex parte 4 decree and ex-parte order dated 17.12.2007 were not in his knowledge. However, as per averments contained in application under order 9 rule 13 of the Code of Civil Procedure, petitioner on 19.8.2008 showed the copy of ex parte judgment and decree to his younger brother, who disclosed about the said ex parte decree to the respondent. However, when he appeared as AW-1, he stated that he was told about the ex parte judgment and decree by the co-villagers and thereafter he made inquiries and moved an application. 8. Mr. Rama Kant Sharma has drawn the attention of the Court to the cross-examination of the respondent whereby he has specifically admitted that he had not appeared deliberately before the Court. He has not led any evidence on whose instance he was sent for canvassing at Arki. According to AW-2, her husband was sent on duty by the high command and this letter was received through her brother. However, the fact of the matter is that letter has not been placed on record either by the respondent or his wife AW-2. Respondent has not examined his brother or the co-villager, who according to respondent has apprised him about the ex parte judgment and decree passed by the trial court. 5 9. The matter is required to be considered from another angle. Even assuming that respondent’s wife had refused to receive the summons, but she knew about the pendency of the case. It is not believable that the wife will not tell the husband about the pendency of the case. She has put her signatures on the summons Ex.RW-1/A. She has admitted that she is graduate though according to respondent, she was under- graduate. The only explanation given by AW-2 why the pendency of the suit was not brought to the notice of the respondent is that she forgot to apprise her husband about the case. 10. The trial court was required to pass a detailed and speaking order as far as the application under section 5 of the Limitation Act is concerned. It is true that the Courts have to be liberal as far as the applications under section 5 of the Limitation are concerned, however, it is equally true that the Courts have to take into consideration that the rights, which has accrued in favour of opposite party, are not disturbed. The Reasons assigned by the respondent, in his application preferred under section 5 of the Limitation Act, were neither cogent nor convincing. There is variance in the averments contained in the 6 application under section 5 of the Limitation Act, application under order 9 rule 13 of the Code of Civil Procedure and statement of the respondent, the manner in which he came to know about the ex parte judgment decree dated 6.6.2008. 11. Accordingly, the Court is of the considered view that the application preferred by respondent ought not to have been allowed. The trial court has committed material irregularity and illegality while passing the order. 12. Consequently, the petition is allowed. The order dated 31.12.2010 passed by the Civil Judge (Senior Division), Court No.1; Paonta Sahib in Civil Miscellaneous Application No. 143/6 of 2008 is quashed and set aside. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 8.7. 2011. *awasthi*