CR No.3973 of 2009 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3973 of 2009 (O&M) Date of Decision: 24.08.2010 Mukhtiar Singh & Anr. ..Petitioners Vs. Iqbal Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.B.S.Sidhu, Advocate, for the petitioners. BPS Virk, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) The petitioners/defendants by way of this revision petition have challenged the order 9.06.2009, passed by the learned courts below, on an application moved by the defendants/petitioners, under Order 9 Rule 13 of the Code of Civil Procedure. Suit filed by the plaintiffs/respondents for possession on the basis of ownership, after making payment of amount paid, was decreed ex parte. The petitioners were duly served in the suit. The defendants/petitioners, filed written statement but thereafter absented from the court. The ex parte proceedings ordered CR No.3973 of 2009 2 against the petitioners. The plaintiffs/respondents thereafter led ex parte evidence, and the suit was decreed on 17.08.2004. Application was thereafter moved on 7.04.2005 for setting side ex parte decree on the following grounds: (i) That the petitioners had engaged Shri Inderjit Singh Saluja, Advocate, to defend the superfluous claim of plaintiff/respondents and written statement was filed and the case was proceeded thereafter, to the knowledge of the applicants. (ii) The applicants were not aware that they have been proceeded against ex parte as it was not so disclosed by their counsel; (iii) That the applicants were cheated by their counsel who misused the confidence and faith reposed in him; (iv) That the appellants are illiterate persons and belong to village folk and therefore, believed that the suit was pending in the Hon'ble court. (v) That the applicants/petitioners came to know about the ex parte decree when warrant of possession was issued; (vi) That the applicants/petitioners may not be penalized for the negligence and breach of trust by their counsel. These grounds were said to be sufficient ground for setting aside ex parte judgment and decree dated 17.08.2004. CR No.3973 of 2009 3 Application was contested by the plaintiffs/respondents by raising preliminary objection, that the application was hopelessly barred by time, as the petitioners were aware of the pendency of the suit from the very beginning. Averments on merits were also denied. On the pleadings of the parties, learned trial court framed the following issues: 1. Whether the applicants/defendants are entitled to get set aside the ex parte judgment and decree dated 17.8.2004? OPA 2. Whether the application for setting aside the ex parte judgment and decree is within limitation? OPA ` Learned trial court on appreciation of evidence recorded a finding, that the petitioners/applicants were aware of the proceedings. The petitioners were not only been served, but had also filed written statement. In spite of knowledge of the proceedings, the petitioners did not bother to inquire about the case, and filed application for setting aside ex parte decree after expiry of limitation, with no prayer for condonation of delay, nor any application under section 5 of the Limitation Act was moved. Learned trial court took note of the fact, that the witness examined by the petitioners i.e. AW 3, Shri Inderjit Singh Saluja, Advocate, deposed that he had given information regarding ex parte order dated 9.4.2004 to Dhanna Singh Lambardar of the village, who had brought the CR No.3973 of 2009 4 petitioners/applicants to him. The learned court further held that in cross-examination it was stated by him, that time and again information was sent to the petitioners/applicants. It was also proved on record, that Mukhtiar Singh applicant, was appearing in the execution application personally, before engaging him as counsel. In execution proceedings a prayer for date, for filing objections made, but he failed to do so. The costs imposed were also not paid. The learned trial court, therefore, held that the application was time barred, as knowledge and service of proceeding in suit as well as in execution was duly proved. The learned trial court further held, that in this case in view of the fact that the petitioners, were in know of the proceedings, limitation could not be counted from the date of knowledge, but from the date of the decree. Appeal filed by the petitioners was also dismissed. Mr. B.S.Sidhu, learned counsel appearing for the petitioners, by placing reliance on the judgment of this court in the case of Harmader Singh & Ors. Vs. Malkiat Singh & Anr. 2006 (4) RCR (Civil) 669 contended, that limitation for setting aside of ex parte decree is to be counted from the date of knowledge, and not from the date of passing of decree. This contention of the learned counsel for the petitioners, is misconceived, as in the case of Harmader Singh & Ors. Vs. Malkiat Singh & Anr. (supra), it was held that when ex parte decree is passed, CR No.3973 of 2009 5 without notice, then the limitation is to be counted from the date of knowledge, but in the case in hand it is not only that the petitioners were served, but had also filed written statement, the limitation, therefore, was to start from the date of decree. Learned counsel for the petitioners thereafter placed reliance on the judgment of this court in the case of Ram Niwas Vs. Smt.Gita Devi 2009 (1) RCR (Civil) 175, to contend that it was incumbent upon the court to issue notice to the petitioners, as their counsel did not appear in the court on the date fixed. This contention is again misconceived, as the question in the case of Ram Niwas Vs. Smt.Gita Devi (supra), was that when a counsel appears in court, and pleads no instructions, in that eventuality notice is required to be given to the party. In the present case this is not the position. In the case in hand neither the counsel nor party was present. The petitioners, therefore, were rightly proceeded ex parte. The cause shown by the petitioners was also not sufficient, as the delay was not of few days but more than a year. It cannot be believed that the petitioners were not aware of ex parte proceedings or ex parte decree, specially when one of the petitioners had also appeared in the execution proceedings. Allegations levelled against counsel, were rebutted by him, when he appeared in the witness box as AW 3. It is well settled, that when a petition is time barred, and no explanation for condoning the delay is given in the ground or no application under section 5 of the Limitation Act is CR No.3973 of 2009 6 filed, the court is to reject the petition, without proceeding with the matter. No ground is, therefore, made out to interfere with the well reasoned judgments of the learned courts below. No merit. Dismissed. (Vinod K.Sharma) 24.08.2010 Judge rp