IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1493 of 2005 TARAWATI VERMA, wife of late Daya Murti Verma, resident of Mauza Dehri, Mohalla Dhantolia, Dehri, P.S. Dehri, District Rohtas ... Plaintiff-Appellant-Petitioner Versus UMA RANI, wife of Raju, Resident of Mauza Dehri, Mohalla Dhantolia, P.S. Dehri, District Rohtas ... Defendant-Respondent-Opp.Party ----------- 15. 9.12.2010 Heard counsel for the petitioner. Despite service of notice no one has appeared on behalf of the sole opposite party. This civil revision application is directed against the judgment dated 27.4.2005 in Civil Misc. Appeal No. 05/02 of 2001/2002, whereby and whereunder the lower appellate court while dismissing the miscellaneous appeal of the petitioner in course of affirming the order of the trial court dated 16th February, 2001 in Misc. Case No. 10 of 1998 has held that there was no error in restoration of Money Suit No. 1 of 1996 to its original file after setting aside the ex-parte decree passed on 30.4.1997/ 7.5.1997. Learned counsel for the petitioner, however, assailing the aforementioned orders of the court below has submitted that when 2 the application filed by the opposite party was barred by limitation, the order of both the courts as with regard to exercise of power under Order 9 Rule 13 C.P.C. was itself wholly illegal and without jurisdiction. Expanding this part of the submission learned counsel for the petitioner has submitted that such an ex- parte decree against the opposite party was passed on 7.5.1997 knowledge of which was acquired by the opposite party on 18.8.1997 through the summons of the resultant execution case levied by the petitioner, the filing of the application for setting aside the ex-parte decree under Order 9 Rule 13 C.P.C. on 7.4.1998 was clearly barred by limitation. In support of his submission he has placed reliance on the judgment of the Apex Court in the case of Mahabir Singh vs. Subhash & ors., reported in (2008) 1 SCC 358. He is thus of the view that such an application filed by the opposite party on 7.4.1998 could not have been entertained after expiry of period of limitation as provided under Article 123 of the Limitation Act, 1963. 3 As noted above, no one has appeared on behalf of the opposite party. This Court, however, having gone into the materials on record would find that the opposite party, a rustic lady, was made victim of continued series of unfortunate circumstances. There is in fact no authentic proof of service of summon on her when the money suit was being prosecuted by the petitioner, inasmuch as it is said that the process server took the notice to the school where she was working but she had allegedly refused to receive such summon. The process server, however, has candidly admitted in his deposition in course of miscellaneous case that though such refusal was made by the opposite party in presence of another lady teacher of the school but even that lady teacher had refused to put her signature as with regard to refusal of summon by the opposite party. The process server in fact had not obtained the signature of any independent witness on the service report and had submitted his report as with regard to deemed service on account of alleged refusal of summon. The court in 4 seisin of the money suit seems to have also accepted this perfunctory report service of notice/ summon as valid service and thereafter the suit was decreed ex-parte. The tragedy of the opposite party had continued further, inasmuch as even when summon of the execution case levied by the petitioner was served on her and she had also immediately engaged a counsel at Sasaram the said counsel after accepting the instructions as also Vakalatnama had not filed the application under Order 9 Rule 13 C.P.C. on the same day on a plea that it was quite late in the day for filing the application and in fact he had made her to return to her place with an assurance that such an application would be filed on the next day i.e. tomorrow. The opposite party, a lady, seems to have believed her counsel and thereafter had gone back to her place and would only later on come to know after a period of 7-8 months that such a case was not filed and therefore, the application for setting order ex-parte decree was filed on 7.4.1998 through another counsel. A plea was taken therein as with regard to the date of 5 knowledge of such ex-parte decree to be only through the first Advocate but then making it clear that the first Advocate had misconducted by accepting the instructions and yet not filing her case. This issue of acquiring of knowledge and the conduct of the Advocate was in fact also sought to be explained by giving details thereof in the amendment petition filed to the application under Order 9 Rule 13 C.P.C. It is, however, not in doubt that the parties thereafter had led evidence in support of their respective claim and the lady in question, the opposite party, had got herself examined in which she had reiterated the story of her being misled by her first counsel. There is nothing on record to show that the factum of the lawyer shifting his place of practice as specifically pleaded by the lady in her application under Order 9 Rule 13 read with its amendment petition was ever questioned by the petitioner or even otherwise it was sought to be established by him that such lawyer in fact was still continuing his practice at Sasaram and had never shifted to 6 Dehri. Learned counsel for the petitioner, however, has submitted that there is a distance of only 15 K.Ms. between Sasaram to Dehri and the lawyers at both the places are practicing in both the courts. It would be difficult for this Court to accept such oral submission especially in the matter where the party had led evidence and no question was put to the lady as with regard to questioning the authenticity of her version with regard to misconduct of her first lawyer at Sasaram. In that view of the matter, this Court would find that the knowledge of the lady as with regard to the ex-parte decree would date back to filing of her second petition, inasmuch as she was literally duped by her first counsel who admittedly had not even inspected the records so as to inform the lady with regard to the ex-parte decree. The view taken by the Apex Court in the case of Mahabir Singh (supra) can have no exception in law but there the facts were entirely different. From the reading of the fact portion of the judgment it becomes 7 clear that after the ex-parte decree was passed in that case on 19.2.1996, an application for setting aside the same was filed on 6.2.1997 by taking a plea that such knowledge was acquired on 3.2.1997 from the proceeding of a mutation case. The trial court, however, had found that the defendant had due notice of such ex-parte, inasmuch as he had personally approached the plaintiff 1½ years prior to filing of the application with a request for not giving effect to such ex-parte decree. It was in that context the Apex Court had held that the period of limitation could be reckoned from the date the defendant had approached the plaintiff and had found that the application under Order 9 Rule 13 was filed after 1½ years of such knowledge. In the present case, however, that would not be position, inasmuch as when on 18.8.1997 the opposite party had received the notice in the execution case and had contacted the lawyer but the lawyer did not inspect the records and as noted above, had sent her back with an assurance that her case would be filed on the next following 8 day. That, however, was never done by the lawyer who had in fact left Sasaram court and therefore, the peculiar facts of this case would make the aforementioned judgment of the Apex Court in the case of Mahabir Singh (supra) wholly distinguishable. This aspect of the matter has been considered at length by both the courts while negating the plea of the petitioner and this Court does not find any jurisdictional error or material irregularity in such consideration by either of them. That being so, this Court does not find any merit in this application and the same is, accordingly, dismissed. The trial court, however, is directed to ensure that rehearing of the suit, keeping in view that it is of the year 1996, must be commenced forthwith and concluded as early as possible preferably within a period of six months from the date of receipt/ production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/ 9