C.R. No. 7888 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7888 of 2010 (O&M) Date of decision : 9.2.2011 Subhash Lal ......Petitioner Versus Food Corporation of India .......Respondent **** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. J.S. Bhatia, Advocate, for the petitioner. **** SABINA, J. Plaintiff-Food Corporation of India ( in short 'the Corporation') had filed a suit for recovery of ` 4,26,527.20 paise. The suit filed by the Corporation was decreed in ex parte vide judgment and decree dated 28.7.1992 (Annx P-1). Petitioner moved an application under Order 9 Rule 13 of the Code of Civil Procedure (in short 'CPC') for setting aside the ex parte judgment and decree dated 28.7.1992. The said application was dismissed by the trial Court vide order dated 3.9.2009 (Annexure P-3). Thereafter, petitioner filed an appeal challenging the judgment and decree dated 28.7.1992 alongwith an application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. The application was dismissed by Additional District Judge (Adhoc) Fast Track Court, Faridkot vide order dated 9.8.2010. Hence, the present petition by defendant No.3. C.R. No. 7888 of 2010 (O&M) 2 After hearing the learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal. A perusal of Annexure P-1 reveals that the defendants were proceeded ex parte vide order dated 10.4.1992 as they had failed to appear despite service through publication. Hence, ex parte decree for recovery of ` 4,26,527.20 paise was passed in favour of the plaintiff-Corporation. Thereafter, petitioner moved an application under Order 9 Rule 13 CPC in the year 2007. The said application was dismissed by the trial Court vide order dated 3.9.2009 (Annexure P-3). A perusal of the said order reveals that the suit had been filed by the Corporation on 3.1.1989. Various efforts were made to effect service on the defendants till 5.3.1991, but service could not be effected on the defendants through ordinary process. On 5.3.1991 the Court observed that the defendants were evading service and it was not possible to effect service on the defendants through ordinarily process and hence they were ordered to be served through publication in the newspaper Daily Nawan Zamana Jalandhar. Despite publication in the newspaper none appeared on behalf of the defendants. In these circumstances, the trial Court had rightly dismissed the application filed by the petitioner as the same had been filed after a long delay. It had also been noticed by the trial Court that the petitioner had taken the plea that he had come to know about the passing of the decree in January 2007 when he visited the patwari. However, copy of the jamabandi was obtained on 11.9.2006. Hence, the plea taken by the petitioner that he had come to know about the passing of the decree in January 2007 was C.R. No. 7888 of 2010 (O&M) 3 rightly disbelieved by the trial Court. After the dismissal of the said application, the petitioner filed an appeal against the judgment and decree dated 28.7.1992 alongwith an application under Section 5 of the Limitation Act. Although, a liberal approach is required to be adopted while dealing with an application under Section 5 of the Limitation Act, but in the facts and circumstances of the present case, the learned Additional District Judge rightly dismissed the application under Section 5 of the Limitation Act as the petitioner had failed to satisfy that the delay in filing the appeal was bona fide. No ground for interference is made out. Dismissed. (SABINA) JUDGE February 9, 2011 Anand