Civil Revision No. 7290 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 7290 of 2010(O&M) Date of Decision: 18.4.2011 *** Amit Kumar .. Petitioner Vs. Jodh Singh .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. V.K. Jindal, Advocate for the petitioner. Mr. I.S. Babla, Advocate for the respondent. *** ARVIND KUMAR, J. CM No. 9373-C-II of 2011 Application is allowed. Judgment is taken on record. CR No. 7290 of 2010 The petitioner is the legal representative of deceased Om Parkash, who was having an ex-parte judgment and decree dated 21.1.2008 in his favour against the respondent passed in a suit for possession by way of specific performance of agreement to sell dated 4.5.2001. After the decree when an execution petition was filed, the respondent-defendant filed an application under Order IX Rule 13 CPC for setting aside of ex-parte order dated 10.12.2004 as well as aforesaid judgment and decree dated 21.1.2008 passed in civil suit No. 642 of 2007. Reply to the said application was filed. Meanwhile, plaintiff Om Parkash died and the petitioner Civil Revision No. 7290 of 2010 2 continued with the execution petition. The learned Court below by dint of order dated 8.9.2010 allowed the application subject to payment of costs of Rs.500/-. Dis-satisfied with the same present application has been filed. On 9.11.2010 when the instant revision came up for hearing, the following contention of learned counsel for the petitioner was noticed:- “Learned counsel for the petitioner inter alia contends that the defendant-respondent had been served in the suit by registered AD posted as the defendant refused to receive the summons by registered post which is valid service. It is also contended that the defendant respondent was even thereafter served by munadi and affixation. It is also contended that the application moved by defendant-respondent for setting aside proceedings and ex-parte judgment and decree was barred by limitation and even application for condonation of delay in filing the application was not moved.” Learned counsel for the respondent has placed reliance upon the judgment rendered by the Hon'ble Apex Court in the case of Bhagmal and others Vs. Kunwar Lal & Ors. 2010(3) RCR (Civil) 941, to contend that there was no necessity to file an application for condonation of delay and the limitation must be deemed to have been started from the date of knowledge of the ex-parte judgment and decree. In the aforesaid case the Hon'ble Apex Court, in a similar situation, held in para No.7 as follows:- “7 ... The appellants/ defendants had clearly pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding ex-parte and also the ex-parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellants/ defendants for making the order IX Rule 13 application at the time when it was actually made. This was also a valid Civil Revision No. 7290 of 2010 3 explanation of the delay. The question of filing Order IX Rule 13 application was, in our opinion, rightly considered by the appellate Court on merits and the appellate Court was absolutely right in coming to the conclusion that appellants/ defendants were fully justified in filing the application under Order IX Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex-parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hyper-technical view that no separate application was filed under Section 5. The application under Order IX Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice....” Thus, there was no necessity to file separate application for condonation of delay. In the instant case the respondent has clearly shown his bonafide in not appearing before the Court because not on a single summons his service was effect. No publication, admittedly, was made in the newspaper and nothing was shown from the record that defendant in fact had sufficient notice of the date of hearing or sufficient time to appear and to answer the claim of the plaintiff. The defendant claimed that he gathered knowledge of the ex-parte judgment and decree on 30.6.2009 and filed the application within limitation on 27.7.2009. Hence, it was rightly concluded that the limitation starts from the date of knowledge and not from the date of ex-parte order. The rules and procedures are handmaid of justice and in order to decide the lis between the parties on merits, the learned Court below rightly allowed the application of the respondent. No doubt it has been observed that the plaintiff can be compensated with costs, but only an amount of Rs.500/- was imposed, which in the facts and circumstances of Civil Revision No. 7290 of 2010 4 the case, is liable to be enhanced. For the discussion above, the impugned order passed by the learned Court below is modified only to the extent that the cost as imposed upon the respondent shall be increased to Rs.10,000/- which he shall pay positively on the next date of hearing before the Court below. With the aforesaid observations and directions, the instant revision stands partly allowed. (ARVIND KUMAR) JUDGE April 18 , 2011 Jiten