Ex parte decree not set aside for uncorroborated delay excuse despite missing defendant claim; prior knowledge inferred from admissions; Art 227 bars reappreciating evidence in absence of jurisdictional error or perversity. (38 words)

Judgment :

Romesh Verma, J.

The present petition has arisen from the judgment as passed by the learned District Judge, Solan, District Solan, dated 13th March, 2023, whereby the appeal preferred by the present petitioner has been dismissed and the order as passed by learned Civil Judge (Junior Division), Court No.1, Solan, H.P. dated 22nd April, 2016 has been affirmed.

2. The brief facts of the case are that the present respondent filed a Civil Suit No.308/1/04/1998 for specific performance of a contract for sale against the defendant, namely, Ram Swaroop. The suit as preferred by the plaintiff/respondent was decreed by learned trial Court by passing ex-parte decree dated 01.06.2006. The petitioner/defendant preferred an application under Order 9 Rule 13 CPC read with Section 151 CPC for setting aside ex parte order dated 27.11.2003 and ex parte judgment and decree dated 01.06.2006 passed in Civil Suit No.308/1/04/1998, titled Rajender Singh vs. Ram Swaroop, before the learned trial Court. Along with the said application an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 9 Rule 13 CPC read with Section 151 of CPC for setting aside ex parte order dated 01.06.2006 was also filed. The said applications were filed by the petitioner/applicant on 07.02.2011. In the applications, it was averred that the present respondent filed a suit for specific performance of a contract under Section 12 of Specific Relief Act, 1963 on the ground that the plaintiff and defendant entered into an agreement for the purchase and sale of land comprised in Khata No.70, Khatauni No.110, Khasra No.698/151, as per copy of jamabandi for the year 1991-92 for total sale consideration of Rs.1,80,000/-. The defendant put in appearance before the trial Court and filed a written statement raising preliminary objections with regard to limitation, suit hit by provisions of Order 2 Rule 2 CPC and barred by Section 10 of CPC. On merits, it was averred that no agreement had been entered into between the parties and the total sale consideration agreed between the parties was Rs.3,50,000/-. It was further averred that after filing the written statement, the defendant lost somewhere and in this regard, a missing report was lodged with the Police Station, Shimla by the wife of the defendant and rapat No.34 dated 13.02.2001 was entered by the police. The defendant could not be traced thereafter and more than 10 years have lapsed. The present application was filed by the wife of applicant/defendant. It was also averred that she had filed a suit for declaration before the learned Civil Judge (Senior Division), Solan for declaring Ram Swaroop to be dead, as he could not be traced.

3. It was further averred in the application that the wife of the defendant/applicant had no knowledge about the pendency of case and came to know about the judgment and decree passed by learned trial Court on 14.12.2010 when she visited the Patwarkhana to obtain a copy of jamabandi for removal of entry of mutation No.172 regarding the mortgage of land with Smt. Paramjeet Behal. It was informed by the Patwari of Patwar Circle Salogra that the aforesaid land has been transferred in favour of plaintiff through a registered sale deed registered before Sub Registrar Sola