ORDER :- Challenging the concurrent orders passed by the trial Court and the appellate Court in rejecting the application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure, and refusing to set aside the ex parte judgment and decree of eviction passed against the petitioner, this petition is filed under Article 227 of the Constitution.

2. The suit in question was filed by the respondent for eviction of the petitioner on the ground of arrears of rent and various other grounds, Issues were framed and after recording of evidence of the plaintiff when the case was fixed for evidence of the defendant i,e, the present petitioner, on 2-4-2005, the petitioner remained absent and, therefore, ex parte proceedings were drawn and an ex parte judgment and decree was passed on 13-5-2006. An application was filed before the trial Court on 15-7-2005, challenging the ex parte Judgment and decree. The application has been rejected by the trial Court and the appellate Court on the ground

that the application for setting aside ex parte decree is not filed within 30 days, no reasonable cause for the delay is shown and the application is dismissed on the ground that condonation of delay is not sought for by filing appropriate application under Section 5 of the Limitation Act.

3. Shri Manikant Sharma, learned counsel for the petitioner, emphasized that on 2- 4-2005, when the case was fixed for evidence of the petitioner he fell suddenly sick. He was under treatment, could not appear and after the ex parte Judgment and decree was passed on 3-5-2006, petitioner approached his counsel on 17-5-2005, when he was informed about the ex parte Judgment and decree being passed, he applied for certified copy which was given to him on 21-6-2005 and he immediately filed the application under Order 9 Rule 13 CPC on 15-7-2005. It is argued by Shri Manikant Sharma that if the period incurred by the petitioner for obtaining certified copy i.e. period from 13-5-2005 to 20-5-2005 is excluded, then the application for setting aside the ex parte judgment and decree is within time and in rejecting the application on the ground of delay and on the ground that application for condonation of delay under Section 5 is not filed, the learned Court has committed error.

4. Inviting my attention to Section 12 of the Limitation Act, 1963, learned counsel for the petitioner argued that the period spent for obtaining certified copy is to be excluded and, therefore, the Court has committed error in rejecting the application under Order 9, Rule 13 CPC on the ground of delay.

5. Accordingly by placing reliance on a judgment of the Kerala High Court in the case of Unniraman v. Padmanabhan and another, AIR 1988 Kerala 257, and, the judgment of the Allahabad High Court in the case of Rajiv Lochan Pandey v. Madan Gopal Sharma and others, AIR 1989 Allahabad 45, interference into the matter is sought for.

6. Refuting the aforesaid contention and taking me through the reasons indicated by the Courts below in rejecting the application under Order 9 Rule 13 CPC, Shri Nanhoriya, learned counsel for the respondent, submitted that there is a deliberate delay on the part of the petitioner. He remained absent on various occasions and in rejecting the application under Order 9 Rule 13 CPC on the ground of delay, learned Courts have not committed any error. It is submitted by Shri Nanhoriya that in rejecting the application under Order 9 Rule 13 CPC after considering the totality of the facts and circumstances of the case, the Court below have not committed any error which warrants interference in these proceedings.

7. Learned counsel for the respondent also pointed out that under Article 123 of the Limitation Act, an application for setting aside the decree passed ex parte is to be filed within 30 days from the date of decree or 30 days from the date of knowledge, where summons or notice is not served on the applicant. It is stated that in the present case, as the notice of summo

Click Here to Read the rest of this document