Exparte Decree--Setting aside of--When an ex-parte decree is passed, defendants would have more than one remedies.
Exparte Decree--Setting aside of--Courts should be liberal in condoning the delay, because such a litigant would not be benefited in approaching the Court late.

Mr. Rameshwar Singh Malik, J.: (Oral) - Feeling aggrieved against the order dated 07.11.2013 (Annexure P-3) passed by learned Additional District Judge, Kurukshetra dismissing the civil miscellaneous appeal of the petitioner, upholding the impugned order dated 12.02.2013 (Annexure P-2) passed by learned Civil Judge (Sr. Divn), Kurukshetra, thereby dismissing the application of the petitioner moved under Order 9 Rule 13 of the Code of Civil Procedure (for short ‘CPC’), seeking setting aside the ex-parte order dated 11.08.2003 as well as the ex-parte judgment and decree dated 23.02.2005, petitioner-defendant has approached this Court by way of instant revision petition under Article 227 of the Constitution of India, for setting aside the impugned orders.

2. Notice of motion was issued.

3. Facts are hardly in dispute. Respondents-plaintiffs filed a suit for declaration with consequential relief of permanent injunction. In fact, main plank of the plaintiffs-respondents was that they have become owners in possession of the suit land by way of adverse possession. On the basis of said averment taken by the plaintiffs-respondents in their pleadings, learned trial Court framed issue No.1 to the effect, whether the plaintiffs are owners in possession of the suit land by way of adverse possession. However, when the case was listed for evidence of the plaintiffs, defendant did not appear and was proceeded against ex-parte vide order dated 11.08.2003. Suit of the plaintiffs was decreed vide ex-parte judgment and decree dated 23.02.2005 (Annexure P-1).

4. Defendant-petitioner was a retiree and after his retirement, he started living at Ambala Cantt, whereas the suit filed by the plaintiffs-respondents was going on before the learned trial Court at Kurukshetra. He was not keeping good health. When the defendant-petitioner went to his village namely Sharifgarh, Tehsil Sahabad, District Kurukshetra on 06.12.2007, plaintiff No.1 started claiming that he has become owner of the land in question. Defendant-petitioner went to the Court on the very next day and enquired about the matter, upon which he came to know that an ex-parte decree dated 23.02.2005 has been passed by the learned trial Court in favour of the plaintiffs-respondents.

5. Defendant engaged his counsel on that very day i.e. 07.12.2007 and applied for certified copy of the impugned judgment and decree dated 23.02.2005. Thereafter, application under Order 9 Rule 13 CPC was filed without any delay, seeking setting aside of the ex-parte order dated 11.08.2003 as well as the ex-parte judgment and decree dated 23.02.2005. Notice of this application was issued to the plaintiffs. Reply was filed by the non-applicants/plaintiffs. Appropriate issues were framed by the learned trial Court. Parties led their respective evidence. After hearing learned counsel for the parties and going through the evidence brought on record, learned trial Court dismissed the application of the petitioner vide impugned order dated 12.02.2013 (Annexure P-2). Dissatisfied, defendant petitioner filed his civil miscellaneous appeal, which also came to be dismissed by the learned First Appellate Court vide impugned order dated 07.11.2013 (Annexure P-3). Hence this revision petition.

6. Along with the revision petition, petitioner filed two miscellaneous applications as well. CM No.322-CII of 2015 was for seeking exemption from filing certified copy of Annexure P-1, whereas CM No.3220-CII of 2015 was for seeking condonation of delay of 376 days in refiling the revision petition. Both these applications have been allowed vide separate order passed today.

7. Learned counsel for the petitioner, while placing reliance on a judgment of the Hon’ble Supreme Court in Bhanu Kumar Jain Vs. Archana Kumar and another, 2005 (1) SCC 787 and the judgment of this Court in Smt. Sharda Arora Vs. Jasbir Singh and others, [2015(1) Law Herald (P&H) 730 : 2014 LawHerald.Org 2328] : 2014 (4) RCR (Civil) 707, submits that the learned