ORDER

1. This miscellaneous appeal has been preferred by appellant/defendant challenging the order dated 13.1.2015 passed by learned 18th Additional District Judge, Jabalpur in MJC No.100/2014 whereby application under Section 5 of the Limitation Act filed in support of an application under Order 9 rule 13 CPC has been dismissed and consequently application under Order 9 rule 13 CPC registered as MJC, has also been dismissed.

2. Learned counsel for the appellant/defendant submits that in the suit for specific performance filed by the respondent/plaintiff, no notice was served upon the defendant and vide order dated 21.9.2010, the defendant was proceeded ex parte. Learned counsel submits that after proceeding ex parte against the defendant and after filing affidavits of chief examination under Order 18 rule 4 CPC of the plaintiff’s witnesses, the plaintiff filed certain documents/original agreement of sale on the next date i.e. on 12.1.2011, which being improperly stamped was impounded and duty and penalty was imposed and collected even without giving opportunity to the defendant and thereafter again ex parte evidence of all the witnesses was recorded on 8.8.2011. Later on, the plaintiff himself moved applications under Order 6 rule 17 CPC and under Order 1 rule 10 CPC on 23.8.2011 in respect of joinder of State Govt. and both the applications were allowed by learned trial Court even without issuing further summons to the defendant. He submits that in fact no notice was served upon the defendant and ultimately in these circumstances ex parte judgment and decree was passed on 28.9.2011. Upon service of summons of execution proceeding along with copy of ex parte judgment and decree dtd. 28.9.2011, the defendant got knowledge and immediately moved applications under Order 9 rule 13 CPC and under section 5 of the Limitation Act duly supported by affidavits with the prayer of setting aside ex parte judgement and decree and for condonation of delay of about 130 days.

3. After service of notice on the respondent/plaintiff, he filed reply to the application and contended that the defendant was duly served with the summons in the original suit but did not appear deliberately and was proceded ex parte. The defendant did not appear even after service of notice issued by the Collector of stamps in the proceeding of impounding the agreement of sale. It is also contended that the application being barred by limitation, is not entertainable and deserves to be dismissed.

4. Thereafter, learned Court recorded evidence of the defendant but the plaintiff refused to give any evidence in rebuttal. Then on the basis of available evidence and just contrary to law, learned Court by making comparison of defendant’s signature available on summons dtd. 6.2.2012 from the photocopy of summons dtd. 21.9.2010, dismissed the application vide its order dtd.13.1.2015.

5. Learned counsel for the appellant submits that learned Court in the o9r13cpc proceeding, fixed the case for evidence and in pursuance of the order passed by learned Court, the defendant/appellant filed affidavit of chief examination under Order 18 rule 4 CPC of defendant-Harishankar Patel, who was cross examined on behalf of the plaintiff on 24.9.2013 and after closure of evidence of the defendant on 13.3.2014, the case was fixed for evidence of the plaintiff/respondent for 27.3.2014 but on 13.3.2014 itself, learned counsel appearing for the respondent/plaintiff refused to give any evidence in rebuttal to the evidence adduced by the defendant/appellant and thereafter case was fixed for final arguments and despite there being sufficient cause for condonation of delay in filing of the application under Order 9 rule 13 CPC and further despite there being no rebuttal evidence of the plaintiff, learned Court below vide impugned order dated 13.1.2015 dismissed the application under section 5 of the Limitation Act and consequently dismissed the application under Order 9 rule 13 CPC also. He submits that in