A Court has the discretion to act on the pleadings alone in an application under Order 9, Rule 13, C.P.C., but if it decides not to do so, it must give the petitioner an opportunity to adduce evidence in support of the averments in the application.

JUDGMENT :

D.P. Mohapatra, J. - The short question involved in this case is whether the application filed by the petitioner under Order 9, Rule 13, C. P. C., was rightly rejected by the Courts below as being barred by limitation.

Puri Municipality, the opposite party No. 1, filed Money Suit No. 82 of 1971 against the petitioner and one Ranjit Kumar Mitra who, as it appears now, was dead since 25.11.1945, for realisation of Rs. 501/- towards holding tax. In the said suit notice sent to Ranjit Kumar Mitra, was returned back with report that he is dead. Notice on the petitioner could not be served due to his absence and a copy of the notice was hung up on the premises. The suit was decreed ex parte on 17. 3. 1972.

On 8. 11. 1978 the petitioner filed a petition under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree and for restoration of the suit alleging inter alia that he was not aware of the filing of the suit or its disposal till 6. 11.1978 when he came to know about it on inspection of records. He further alleged that while he is a resident of Mahendra Mitra Road (Hoogli), West Bengal, summons in the suit were sent to Kundhaibeha Sahi, Puri. The decree was challenged as a void one having been obtained on suppression pf summons as well as being against a dead person.

2. No objection was filed by the opposite party to the aforesaid application. The opposite party No. 2 was impleaded in the proceeding on his own application since he purchased the property in the execution case arising out of the suit. Both the Courts below rejected the petition under Order 9, Rule 13, C. P. C. on the ground of being barred by limitation.

3. The lower appellate Court in paragraph-8 of its order has observed as follows:

"Evidently, it appears that the suit summons were not served on defendant No. 1 and it was also not served on defendant No. 2, who was reported to be dead. But it is curious to note that on 6. 1. 1972 orders have been passed by the learned Munsif that the summons issued through Court have been duly served en the defendant and he did not appear and was set ex parte. The learned Munsif did not verify as to how many defendants were there in the suit. Thus it can be unhesitatingly said that the ex parte decree passed on 17. 3. 1972 against the defendants is a nullity."

Both the Courts held and in my view, rightly that Article 123 of the Limitation Act governs the case. The said Article provides that to set aside a decree passed ex parte application is to be filed within thirty days from the date of the decree or where summons or notices were not duly served when the applicant had knowledge of the decree. Since in this case admittedly, notice/summons were not served on the petitioner, the second part of the provision applies. Hence, the date of knowledge of the petitioner about the ex parte decree passed in the suit is material for the purpose. The petitioner in his application under Order 9, Rule 13, C. P. C. expressly stated that he came to know of the ex parte decree after inspection of record on 6. 11.1978. On 31.10. 1978, on receiving an anonymous letter and after reaching Puri being confirmed about the fact, he filed the application for inspection of record. As already noted, the opposite parties did not choose to file any counter or objection to the application filed by the petitioner. As such, in accordance with the provisions of Order 8, Rule 5, C. P. C. it was open to the Court to pronounce judgment on the basis of the facts contained in the pleadings of the petitioner. However, it was at the discretion of the Court to require the petitioner to establish the statements contained in his application by evidence as per the proviso of Order 8, Rule 5, C. P. C. The order sheet does not show that the Court on application of mind to the averments in the petition did not feel satisfied to act on the pleading of the petitioner despite the same having not been controverted by the opposite parties and wanted him to adduce eviden