CR No.3007 of 1991 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3007 of 1991 (O&M) Date of Decision: 16.12.2008 Chand Singh (dead) through L.R. ....Petitioner Vs. Darbara Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.IPS Doabia, Advocate, for the petitioner. Mr.K.S.Sivia, Advocate, for the respondents. --- Vinod K.Sharma,J. The petitioner has challenged the order dated 11.5.1991 passed by the learned Sub Judge First Class, Muktsar vide which application moved by the petitioner for setting aside ex parte decree has been ordered to be dismissed being time barred. The petitioner also challenges the order dated 6.6.1991 of the learned Additional District Judge, Faridkot dismissing the appeal against the order passed by the learned Sub Judge First Class, Muktsar. CR No.3007 of 1991 (O&M) 2 Plaintiff-respondent filed a suit for declaration in which notice was given to the petitioner. It was claimed that in spite of due service as he failed to appear he was proceeded ex parte and the suit filed by the plaintiff- respondent was decreed on 16.1.1986. The petitioner moved an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex parte decree. The petitioner claimed that no service was effected on him nor he came to know about the pendency of the suit in which ex parte decree was passed on 16.1.1986. He denied having affixed his thumb marks on the summons. The petitioner claimed that he came to know about the ex parte decree when he came to his village Katli Sanghar from Rajasthan and thereafter he filed an application for setting aside ex parte decree. The application was opposed by the plaintiff-respondent by claiming that the petitioner was duly served. It was also asserted that the petitioner has failed to mention the date when he came to know about the ex parte decree against him. The plea was also taken that the absence of the petitioner was intentional and willful and the application moved is mala fide. In the rejoinder, plea was taken that the petitioner came to know about the decree only on 9.10.1987 and thereafter he obtained copies of the judgment and decree sheet and thus, claimed that the application was within time. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- CR No.3007 of 1991 (O&M) 3 1. Whether there are sufficient grounds to set aside decree dated 16.1.1986? 2. Whether the application is within time? OPP 3. Relief. Gurbachan Singh, general attorney of the petitioner appeared in the witness box as AW 1 and deposed in support of the averments made in the application. He also examined AW 2 Deewan K.S.Puri, Finger Prints and Handwriting Expert who compared the disputed thumb marks on the summons of Chand Singh with specimen thumb impressions of Chand Singh and he gave his report to the effect that thumb marks on the summons are identical to the thumb marks on the general power of attorney and on the agreement as aforesaid. Learned trial court held that the petitioner failed to prove that the application for setting aside ex parte decree against him was within time. Learned trial court observed that as per the stand taken by the petitioner he came to know about the ex parte decree on 9.10.1987 whereas the application was moved on 27.11.1987 i.e. after one month and 18 days whereas the application was required to be filed within one month from the date of knowledge. The court rejected the contention of the petitioner that the certified copy was made available to him on 13.11.1987 and therefore, the application is within time. Learned trial court observed that the time of CR No.3007 of 1991 (O&M) 4 limitation starts from the date of knowledge and the time taken for getting certified copies is not to be excluded therefrom. In support of this finding learned trial court placed reliance on the judgment of this court in the case of Amarjit Singh Vs. Harnam Singh 1990 (1) R.R.L. 321. Reliance has also been placed on the judgment of Hon'ble High Court of Kutch in the case of Thacker Shivja Kumverji Vs. Bhatia Thacker Kalyanji Ratanshi AIR 1952 Kutch 48, wherein it was held that benefit of section 12 (2) of the Limitation Act is not available in computing the period of limitation prescribed for setting aside ex parte decree. Thus, the application has been dismissed as time barred. In appeal, learned lower appellate court observed that the petitioner did not enter into witness box. However, his general attorney Gurbachan Singh appeared as AW 1. Learned lower appellate court also observed that the suit was decreed on 16.1.1986 and the application for setting aside the ex parte decree could be moved within 30 days of the decree or from the date of knowledge. Learned lower appellate court also observed that the witness produced failed to prove as to when the petitioner came to know about the decree as his statement was with respect to his own knowledge and not that of the petitioner. Learned lower appellate court also observed that the application was required to be moved within 30 days of the date of knowledge. Learned counsel for the petitioner placed reliance on the judgment of Hon'ble Supreme Court in the case of M.K.Prasad Vs. CR No.3007 of 1991 (O&M) 5 P.Arunmugam 2001 (2) Apex Court Journal 60 to contend that period spent in getting certified copy of judgment and decree was required to be deducted in computing 30 days' period. The Hon'ble Supreme Court has been pleased to lay down as under:- "9. Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors. 1972 (1) SCC 366 and G.Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore 1988 (2) SCC 142 this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bonafide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M.Krishnamurthy 1998 (7) SCC 123 this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In absence of anything showing mala fide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context CR No.3007 of 1991 (O&M) 6 the court observed: "It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court." 10. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex-parte decree as is evident from his application filed under Section 5 CR No.3007 of 1991 (O&M) 7 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex- parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex-parte decree as well. 11. Consequently, the appeal is allowed by setting aside the orders impugned. The appellant's application for condoning the delay and for setting aside the ex-parte decree shall stand allowed subject to payment of exemplary costs of Rs.50,000/- CR No.3007 of 1991 (O&M) 8 to be paid to the opposite side within a period of 30 days. If the costs are not paid within the time specified, this appeal shall be deemed to have been dismissed and the ex-parte decree passed against the appellant revived. We may clarify that the costs awarded by this order are in addition to the amount of Rs.10,000/- deposited in this Court for payment to the respondent vide order dated 3.11.2000.” Mr.K.S.Sivia, learned counsel appearing on behalf of the plaintiff/respondent has opposed the revision by placing reliance on the judgment of Hon'ble Kutch High Court in the case of Thacker Shivji Kumverji Vs. Bhatia Thacker Kalyanji Ratanshi AIR 1952 Kutch 48, wherein Hon'ble Kutch High Court has been pleased to lay down that the exclusion of time requisite allowed by section 12 (2) of the Limitation Act cannot be had in computing the period of limitation prescribed for an application for setting aside ex parte decree. Hon'ble Kutch High Court has been pleased to lay down as under:- “6. Second contention was that exclusion of time intervening between the date on which judgment was pronounced and the date on which the decree was prepared and signed should be excluded and if that exclusion was made, the application was filed in time, Sub-section (2) of S.12 of the Act provides, for exclusion of time requisite for obtaining a copy of the decree in computing period of limitation for proceedings mentioned in it and the time requisite for obtaining a copy is under certain CR No.3007 of 1991 (O&M) 9 circumstances inclusive of the period intervening between the date on which judgment was pronounced and the date on which decree was actually signed. But this exclusion can only be had in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment specifically mentioned in sub-section (2) of S.12 of the Act and not for an application for setting aside the decree passed 'ex parte' not so specifically mentioned. The exclusion of time requisite is allowed on the principle that the applicant or the appellant, as the case may be has to obtain a copy of the decree or order though not necessarily for annexure with the memo of appeal or application (Keshar Sugar Works Vs. R.C.Sharma', AIR 1951 All 122 FB) and by not specifically including a proceeding for setting aside a decree passed 'ex parte' in S.12 of the Act, it was intended that a defendant served with summons in a suit had not to obtain a copy of the decree passed 'ex parte' to enable him to apply for setting it aside. Moreover, for obtaining exclusion of time under S.12 of the Act it is necessary that application for a copy should be made within the period prescribed for making an application or preferring an appeal, it follows from what is stated above that an application for a copy should be made at least before an appeal or an application as the case may be is filed. Hence, the CR No.3007 of 1991 (O&M) 10 contention for exclusion of time under S.12 of the Act fails and it is not necessary to consider what time was requisite having regard to the fact that an application for a copy was not made in this case before the application for setting aside the decree passed ex parte was filed.”. Learned counsel appearing on behalf of the respondents also vehemently contended that in the present case there is no evidence, whatsoever, with regard to the date of knowledge and thus, the courts below were justified in rejecting the application being barred by limitation. In support of this contention learned counsel for the respondents placed reliance on the judgment of Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., and others AIR 2005 SC 439, wherein Hon'ble Supreme Court has been pleased to lay down that power of attorney holder cannot depose in place and instead of the principal. Hon'ble Supreme Court in the said judgment has been pleased to lay down as under:- “13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “act” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to CR No.3007 of 1991 (O&M) 11 power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr.Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside.” Reliance was also placed on the judgment of Hon'ble Rajasthan High Court in the case of Ram Prasad Vs. Hari Narain and others AIR 1998 Rajasthan 185, wherein Hon'ble Rajasthan High Court has been pleased to lay down that power of attorney holder is not entitled to CR No.3007 of 1991 (O&M) 12 appear as a witness for a party appointing him as he cannot appear. The contention of the learned counsel for the respondents, therefore, is that evidence regarding date of knowledge was personal to the petitioner and therefore, the attorney could not depose with regard to the said knowledge. On consideration of the matter, I find force in the contentions raised by the learned counsel for the respondents. The sole question raised by the learned counsel for the petitioner in the present case is that if the period taken for getting certified copy of the order is excluded then the application moved by the petitioner was within time. However, this plea of the petitioner cannot be accepted in view of the judgment of this court in the case Amarjit Singh Vs. Harnam Singh 1990 (1) Recent Revenue Reports 339 (supra) and the judgment of Hon'ble High Court of Kutch in the case of Thacker Shivja Kumverji Vs. Bhatia Thacker Kalyanji Ratanshi (supra), wherein it has been laid down that the provisions of Section 12 (2) of the Limitation Act would not be applicable to an application moved for setting aside ex parte decree. It has further to be noticed that in the present case the petitioner has failed to prove the date of knowledge as he chose not to appear in the witness box. It is settled law matter that power of attorney cannot depose about the facts which are within the personal knowledge of the principal. The fact as to when the petitioner came to know about the decree was personal to the principal and therefore, could not be deposed by the power CR No.3007 of 1991 (O&M) 13 of attorney. Thus, in the present case, there is no evidence of date of knowledge also. The authority of the Hon'ble Supreme Court M.K.Prasad Vs. P.Arunmugam (supra) relied upon by the petitioner would not be applicable to the facts of the present case as the petitioner did not move any application seeking condonation of delay in filing the appeal and therefore, there arose no question for condoning the delay in filing the application. Hon'ble Delhi High Court in the case of Mrs. Naimat Kaur Anand and others Vs. M/s Decon Company 2000 A.I.H.C. 1214 has been pleased to lay down that an application under Order 9 Rule 13 of the Code which is not accompanied by an application under section 5 of the Limitation Act is liable to be dismissed if the same is time barred. Similar view has been taken by Hon'ble Bombay High Court in the case of Vijay Prabhakar Salunke Vs. Kamini S.Dadarkar 2001 A.I.H.C. 2432. For the reasons stated above, no fault can be found with the orders passed by the learned courts below dismissing the petition filed by the petitioners under Order 9 Rule 13 of the Code of Civil Procedure to be barred by limitation. Dismissed. 16.12.2008 (Vinod K.Sharma) rp Judge +