// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6337/2008 Ramdeva alias Ramdayal S/o Bala Ji Versus Additional Sessions Judge (Fast Track) No.1, Bundi and Others Date of Order ::: 18.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Sudarshan Laddha, Counsel for petitioner #### By the Court:- Heard learned counsel for the petitioner. The claimant-respondents No.2 and 3 filed an application under Sections 166 and 140 of the Motor Vehicles Act for compensation against Ramlakshman, driver of the vehicle, appellant Ramdeva, the owner of the vehicle, and respondent No.4 the Oriental Insurance Company Limited. A summon/notice of the application was served upon the present appellant and he filed his reply to the claim application on 3rd November, 1995 before the Motor Accident Claims Tribunal, Bundi; thereafter he did not appear before the Tribunal resulting in ex-parte judgment and award dated 24th March, 2006 against him by the // 2 // Tribunal. The applicant/petitioner filed an application for setting-aside the ex-parte judgment and award, under Order 9 Rule 13 CPC on 2nd March, 2007 contending therein that he came to know about passing of ex-parte award on 1st March, 2007, therefore, the ex-parte award passed in the case be set-aside. Admittedly, the application under Order 9 Rule 13 CPC was filed after expiry of period of limitation of 30 days. It is also admitted fact that no application under Section 5 of the Limitation Act was accompanied therewith. The trial court rejected the application vide impugned order dated 3rd June, 2008 on the ground that application has been filed after expiry of period of limitation and no application under Section 5 of the Limitation Act was filed. Being aggrieved with the same, the present writ petition has been preferred on behalf of the non-claimant/petitioner, the owner of the vehicle. The learned counsel for the petitioner contended that the petitioner came to know about passing of the ex-parte decree only on 1st March, 2007 and he filed the present application under Order 9 Rule 13 CPC only on 2nd March, 2007, therefore, there was no need of filing the application under Section 5 of the // 3 // Limitation Act as his application was filed within a period of one day from the date of his knowledge, therefore, the learned Tribunal committed an illegality in rejecting his application under Order 9 Rule 13 CPC. During the course of arguments, the learned counsel for the petitioner admitted that summon/notice of the claim application was served upon him; the petitioner also filed his reply to the claim application on 3rd November, 2005 before the Motor Accident Claims Tribunal, Bundi, therefore, this fact is not disputed that the summon/notice of the claim application was served upon him. As per Article 123 of the Limitation Act the period of limitation is 30 days for filing the application to set-aside the ex-parte decree, which starts from the date of decree and where the summon/notice was not duly served, the period of limitation starts when the applicant had knowledge of the ex-parte decree. In the present case the applicant was served with the summon/notice of the claim application, therefore, the period of 30 days will be applicable from the date of decree and not from the date of knowledge, as contended by the learned counsel for the petitioner. In these circumstances, filing of // 4 // application under Section 5 of the Limitation Act was necessary. The trial court has rightly rejected the application under Order 9 Rule 13 CPC, which was filed after expiry of period of limitation without any application under Section 5 of the Limitation Act. There is no merit in this writ petition and the same is accordingly dismissed in limine. (Narendra Kumar Jain) J. //Jaiman//