CIVIL REVISION No.1404 OF 2008 -------- Against judgment and order dated 07.06.2008 passed by Shri Saroj Kumar Srivastava, Additional District Judge-Fast Track Court No.II, Madhepura in Title Misc. Appeal No. 05 of 2006 affirming judgment and order dated 07.08.2006 passed by Shri Satya Prakash, Civil Judge, Sr. Division, Madhepura in Title Suit No. 01 of 2004. --------- Om Prakash Gupta, son of late Ram Bharat Sah (Ram), resident of Madhepura Ward No.7 ( New Ward No.5) Purani Bazar, P.S. and District Madhepura. …Defendant-Appellant-Petitioner Versus Arbind Kumar, son of late Mishri Rai, resident of Mauza Lashkari, P.S. Udakishunganj, District Madhepura. …Plaintiff-Respondent-Opposite Party. ------- For the Petitioner : M/s Sharda Nand Mishra, Dhananjay Kumar Gupta and Deepak Kumar, Advocates. For the Opp. Party : Mr. Shailendra Kumar Singh, Advocate. ------ P R E S E N T THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN -------- S. N. Hussain, J. This civil revision has been filed by the sole defendant- appellant-petitioner challenging order dated 07.06.2008, by which the learned Additional District Judge-cum-F.T.C.-II, Madhepura, dismissed Misc. Appeal No. 05 of 2006, which was filed by the petitioner challenging order dated 07.08.2006, passed by the learned Civil Judge, Sr. Division, Madhepura, dismissing Misc. Case No. 01 of 2004 filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ). 2. This civil revision arises out of Title Suit No. 75 of 2002, which was filed by the sole plaintiff-respondent-opposite party against the sole defendant-appellant-petitioner for specific performance of contract on the basis of an alleged agreement dated 08.01.1998 for selling 8 dhurs of land with house for a consideration of Rs.50,000.00, out of which Rs.19,000.00 was paid - 2 - as advance. It was incorporated in the said agreement for sale that the sale-deed would be executed and registered on 15.12.2000 and Chirkut would be handed over to the plaintiff, only on receipt of the remaining consideration amount of Rs.31,000.00. 3. The said suit was decreed ex parte by the learned Subordinate Judge-I, Madhepura on 29.04.2003. It was specifically held by the said court that the summons and registered cards were sent to the defendant, but even after receipt of the said notice, he did not appear and hence the suit was fixed for ex parte hearing and was decided on the basis of the pleadings and evidence adduced on behalf of the plaintiff. Thereafter, the plaintiff-decree holder filed Execution Case No. 04/2003 for execution of the aforesaid ex parte decree. 4. Subsequently on 17.01.2004, the defendant-judgment debtor filed Misc. Case No. 01 of 2004 under the provision of Order IX Rule 13 of the Code for setting aside the aforesaid ex parte decree. Although the said miscellaneous case was beyond the period of limitation, but no application was filed on behalf of the defendant-petitioner for condoning the delay. The said miscellaneous case was dismissed by the learned Subordinate Judge, Sr. Division, Madhepura, vide his order dated 07.08.2006 on the ground of limitation as well as on merits also after considering the respective claims and evidence of both the parties. 5. Against the aforesaid order dismissing the miscellaneous case, the defendant-petitioner filed Misc. Appeal No. 05 of 2006, which was also contested by the plaintiff. The learned Additional District Judge-cum- F.T.C.-II, Madhepura dismissed the said miscellaneous appeal vide his - 3 - judgment dated 07.06.2008 after considering the question of limitation as well as the merits of the case and also after considering the pleadings and evidence of the respective parties. 6. The said judgments/ orders of the learned courts below have been challenged by the defendant-judgment debtor-appellant-petitioner in the instant civil revision on the ground that the notice of the title suit was only sent to him once by ordinary process by the trial court, which was never served upon the defendant and that, thereafter, no step for any other notice either by registered post or by substituted service was taken in the said suit. Learned counsel for the petitioner also claimed that the said service by ordinary process was presumed to be valid service although from the service report it would be apparent that the defendant was shown to have refused to receive the notice after learning the contents thereof. 7. It was also averred that the said service was effected Bala- bala and the witness of the service report, namely, Jay Prakash Gupta was never examined in the miscellaneous case. Learned counsel for the petitioner further claimed that the suit was of 2002 and was decided in haste-post-haste manner in the year 2003 at the instance of the plaintiff as the agreement for sale relied upon by the plaintiff was a forged and fabricated document and no such agreement was ever executed by the plaintiff for sale of the suit land in favour of the defendant. 8. Learned counsel for the petitioner also relied upon three decisions of this High Court as well as one decision of the Hon’ble Apex Court, namely, (i) in case of Vishwanath Jha vrs. Deputy Director, Census and others, reported in 1999 (3) Civil LJ 803, (ii) in case of Dinanath Thakur vrs. - 4 - Dinanath Sao, reported in 2005 (1) PLJR 472, (iii) in case of Hardeo Sngh vrs. Ramavati Devi, reported in (2005) 2 BLJR 1549 (Pat) and (iv) in case of G. P. Srivastava vrs. R. K. Raizada & Ors. reported in (2000) 3 SCC 54. 9. So far decision of this Court in case of Vishwanath Jha (supra) is concerned, the same is not applicable to this case as in that case the defendant had appeared through his counsel but due to the negligence of his counsel, the suit was decided ex parte. So far decision of this Court in case of Dinanath Thakur (supra) is concerned, the same is also not applicable to the facts and circumstances of the case as in that case the procedure of law was not followed in fixing the suit for ex part hearing. So far the other decision of this Court in case of Hardeo Singh (supra) is concerned, it is also not applicable to the facts and circumstances of the case as in that case the defendant had appeared in the suit but his Pairvikar did not follow up the case in his absence resulting in the ex parte decision. So far the decision of the Hon’ble Apex Court in case of G. P. Srivastava (supra) is concerned, it has been held therein that where sufficient cause is made out by the defendant for non-appearance on the relevant date, he cannot be penalised for any previous negligence, which had been overlooked and/or condoned earlier. It was also held that the expression “sufficient cause” must be elaborately considered and even where the defendant is found to be negligent, other side may be compensated by costs. 10. Learned counsel for the sole plaintiff-decree holder- respondent-opposite party opposed the contentions raised by learned counsel for the sole defendant-judgment debtor-appellant-petitioner claiming that notice of the suit was apparently served on the defendant, who refused to - 5 - receive the same after knowing about its content, which was fully proved by the process server, who had been examined in the miscellaneous case. He further stated that one of the witnesses of the said refusal was Jay Prakash Gupta but he could not be examined as he had died. He also claimed that the plaintiff had fully proved valid service of notice upon the defendant and hence there was no question to interfere with the ex parte judgment and decree passed in the title suit. 11. In addition to that learned counsel for the opposite party averred that the said miscellaneous case was hopelessly barred by the law of limitation but neither any explanation for delay was mentioned in the petition of miscellaneous case nor any separate application for condoning the delay was filed by the defendant in the miscellaneous case and hence in the said circumstances, after considering the merits as well as the question of limitation both, the learned courts below rightly rejected the claim of the defendant- petitioner. 12. From the averments made by learned counsel for the parties as well as from the materials on record, including the impugned judgments, it is apparent that the service of notice was duly proved by O.P.Ws. 1, 2, 3 and 4, out of whom O.P.W. 1 has stated that the defendant had received the summons in his presence, whereas, O.P.W. 2, who was the father of Jay Prakash Gupta (witness of the service report), identified the writing and signature of his son, who had died and at the time of service of summons, the said witness was also present. O.P.W. 3 was an Advocate Clerk, who identified the signature of Seristedar on the service report marked as Ext. `B’, O.P.Ws. 4 and 5 also deposed that the defendant refused to receive the summons in their - 6 - presence. Apart from that Ext. `A’ was the service report, whereas, Ext. `B’ was the signature of Seristedar on the service report and Ext. B/1 was the signature of O.P.W.4 on the service report as a witness. These specific and clear evidence adduced on behalf of the plaintiff-opposite party could not be disproved by any oral or documentary evidence of the defendant-petitioner as except the deposition of the defendant-petitioner himself as A.W.1 there was no evidence at all to support his aforesaid claim. This has also been clearly found by both the learned courts below by their concurrent findings on the said issue. 13. So far question of limitation is concerned, it is not in dispute that the ex parte judgment was passed on 29.04.2003 by the trial court in the title suit filed by the plaintiff-opposite party, whereafter decree was prepared on 06.05.2003/12.05.2003, but the miscellaneous case bearing Misc. Case No. 01 of 2004 was filed by the defendant-petitioner on 17.01.2004. The limitation for filing an application to set aside an ex parte decree is 30 days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree in this regard as per the provision of Article 123 of the Limitation Act, 1963. 14. From the foregoing facts and circumstances as well as the findings of this Court, it is quite apparent that the notice of the suit was duly served upon the defendant-petitioner and hence the limitation for filing a miscellaneous case was clearly 30 days from the date of the decree, but in the instant case the miscellaneous case for setting aside ex parte decree was filed after about eight months of the decree. Furthermore, neither any application for condoning the delay was filed in the miscellaneous case nor any ground for - 7 - condoning the delay was stated in the miscellaneous petition although, according to the deposition of the defendant-petitioner in his cross-examination as A.W.1, he has specifically stated that he learnt about the title suit and its disposal after receiving notice of Execution Case No. 04 of 2003 on 26.09.2003. 15. In the said circumstances, even if the said statement of the defendant-petitioner is accepted, the filing of the miscellaneous case on 17.01.2004 was much beyond the period prescribed under Article 123 of the Limitation Act, 1963. It may be noted in this regard that the Hon’ble Apex Court in case of Ragho Singh vrs. Mohan Singh and others, reported in (2001) 9 SCC 717 (paragraph 6) has held that if there is a delay and no application for condoning it has been filed, the Court has no jurisdiction to condone the delay. 16. Considering the aforesaid facts and circumstances of the case as well as the materials on record, it is quite apparent that the impugned judgments and orders of the learned courts below are legal, valid and proper and there is no error of jurisdiction also. Accordingly, this civil revision is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Patna High Court September 17th 2009 AFR MPS/ ( S. N. Hussain, J. )