JUDGMENT

Arun Monga, J. (Oral)

Petition herein is for setting aside order dated 15.12.2017 (Annexure P-4) passed by Ld. Civil Judge (Sr. Divn.), Sangrur affirmed in appeal by the Ld. Additional District Judge, Sangrur vide order dated 09.01.2019 (Annexure P-5), whereby the application of Petitioner/defendant under Order 9, Rule 13 CPC, for setting aside ex-parte judgment and decree dated 12.04.2012 (Annexure P-1) passed in Civil Suit No.68 of 21.05.2009, was dismissed.

2. Brief facts as pleaded in the petition are that the case relates to the rivalry of two employees of Cooperative Department. Petitioner is Manager of Cooperative Bank in Sangrur District, while Respondent was an Auditor. Respondent filed a suit for recovery of Rs.5 lakh as damages against the Petitioner for alleged defamation suffered by him due to the complaints made by Petitioner, which were ultimately filed or withdrawn by Petitioner. Respondent maneuvered the proceedings of purported service of Petitioner in the civil suit and without the knowledge of Petitioner, obtained the ex-parte judgment and decree dated 12.04.2012. In fact, Petitioner was aggrieved because Respondent made false allegations for which false criminal case was registered against Petitioner. In that case, Petitioner was acquitted after trial. During this process, Petitioner was tortured for 29 days by the police to secure his admission in respect of wrong charges levelled by Respondent. Petitioner came to know of the said judgment and decree in April-2014, when he enquired from the concerned official of his department that as to why he was paid less salary and the concerned official told him that his salary was being paid to him after deducting the amount as ordered by the Court. Meaning thereby, Petitioner came to know about the judgment when portion of his salary was attached by the Executing Court in execution of the ex-parte judgment and decree dated 12.04.2012 (Annexure P-1). Thereafter, Petitioner immediately filed an application under Order 9, Rule 13 CPC.

2.1. Application under Order 9, Rule 13 CPC was contested by Respondent. Vide impugned order (Annexure P-4) the said application was dismissed stating that Petitioner was properly served and also stating that the application was filed beyond limitation. Petitioner filed an appeal and Ld. First Appellate Court, though found that neither the Petitioner was validly served in this case and was not aware of the pendency of the suit nor he was aware of the ex-parte judgment and decree, but Ld. First Appellate Court vide impugned order (Annexure P-5) dismissed the appeal on the ground of limitation for delay of only two days, stating that Petitioner had not filed any application for condonation of delay.

3. Having heard the arguments and perusing the impugned order passed by Ld. First Appellate Court, seemingly there are two findings rendered in favour of Petitioner herein. Pertinently, Respondent has not challenged any of those findings rendered by Ld. First Appellate Court. Same being apposite are reproduced herein below:

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10. In his cross-examination, he admitted that he did not know Major Singh personally and he cannot tell the name of Patti in which the house of Major Singh was situated. He further stated that even he could not tell the names of neighbours of Major Singh and he had not got the signatures of Chowkidar, Lamberdar or any villager as witness. He voluntarily stated that there is no need for making witness if the summons is directly served to the person. He further stated that he did not take any identity proof of Major Singh and did not know about the profession of Major Singh. He denied