Defendants' application to set aside an ex-parte decree was dismissed due to lack of timely action and failure to demonstrate improper service.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, defendants (petitioners herein) have assailed order dated 8.1.2016, passed by the learned Additional District Judge-1, Mandi, Camp at Karsog in CMA No. 26 of 2015, whereby the order passed by the learned Civil Judge (Junior Division), Karsog dated 7.8.2015 in CMA No. 42 of 2014 was affirmed.

2. The facts in nut-shell are that the defendants (petitioners herein) suffered a decree for possession of immoveable properties; for recovery of amount of Rs. 2,78,200/-, and use and occupation charges at the rate of Rs. 20,000/- per month w.e.f. 1.11.2010, in the suit filed by respondents No.1 and 2 (here-in-after referred to as the plaintiffs). The decree was passed by the learned Civil Judge (Junior Division), Karsog on 17.8.2011. The defendants (petitioners herein) had been proceeded against ex-parte by the learned trial Court on 8.12.2010 for the reason that none has put in appearance for them, though on an earlier occasion, they were represented by the counsel named Sh. Ramesh Sharma, Advocate.

3. Defendants (petitioners herein) approached the learned trial Court by way of an application under Order 9 Rule 13 of the Code of Civil Procedure (for short the ‘Code’) on 3.6.2014 for setting aside the ex-parte decree dated 17.8.2011. The application was registered as CMA No. 42 of 2014. It was averred in the application that the decree was passed behind the back of the defendants (petitioners herein). They were not duly served and as such could not have appointed any lawyer to defend the case. The defendants (petitioners herein) came to know about the execution petition filed for execution of decree, when the publication for their service appeared in the news paper. Thereafter, they visited Karsog, engaged counsel to contest the execution petition. On these grounds the setting aside of ex-parte decree was sought.

4. The application was contested. Issues were framed. Parties were afforded opportunity to lead the evidence. After hearing both the sides, the learned trial Court vide order dated 7.8.2015 has dismissed the application by holding firstly that the defendants (petitioners herein) were duly served in the suit and were represented by a counsel and secondly that even if the contention of defendants (petitioners herein) that they acquired the knowledge about the ex-parte decree on 28.5.2012 for the first time is assumed to be correct, even then, they have filed the application on 3.6.2014 without either filing a separate application for condonation of delay or making any prayer in the application itself.

5. Defendants (petitioners herein) filed an appeal against the order passed by the learned trial Court, which was registered as CMA No. 26 of 2015 on the files of learned Additional District Judge-1, Mandi, Camp at Karsog. The appeal of the defendants (petitioners herein) was also dismissed on 8.1.2016 by affirming the findings recorded by the learned trial Court. Hence this petition.

6. Learned counsel for the defendants (petitioners herein) has not been able to point out any material from the record to show that the findings recorded by both the courts below are not in conformity with the record. He reiterated the stand that the defendants (petitioners herein) were not served in the suit and merely because some counsel had appeared for them without instructions was not sufficient to draw inference against them. The contention so raised needs to be rejected for the simple reason that the defendants (petitioners herein) have not been able to show that they had taken any action against the counsel, who allegedly had appeared for them without their instructions. That being so, adverse inference is liable to be drawn against the defendants (petitioners herein).

7. Thus, the claim of the defendants (petitioners herein) that they were not aware about the passing of ex-parte decree dated 28.5.2012 is belied. Since they were aware about the pendency of the suit, the defendants (petitioners her