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2005 Supreme(MP) 1033
K.K. Lahoti, J.
Ramdas v. Smt. Amrita and others
Civil Revision No. 261 of 2005 (J); Decided on 13.10.2005.
Imtiaz Husain for applicant; Faiyaz Khan for respondent No. 1.
Headnote:(1) Civil P.C., 1908 -- Ss. 115, 104, O.9 R.13 and O.43 R.1 -- order allowing application to setting aside ex parte decree -- is revisable as proceedings under O.9 R.13 would be finally disposed of if revision is allowed -- more so, appeal is barred under O. 43 R. 1. [Para 8
(2) Civil P.C., 1908 -- O.9 R.13 -- Limitation Act, 1963 -- S. 5 -- limitation to file application under O.9 R.13 starting from knowledge of ex parte decree -- not filed within 30 days of decree -- application for condonation of delay under S. 5 of the Act should be filed. [Para 10
(3) Civil P.C., 1908 -- O.9 R.13 -- summons served -- written statement filed -- case also attended before being posted for evidence -- counsel sought time for 27 months, thereafter pleaded no instruction -- application filed after 11 years -- is highly belated as party should have enquired about the case -- applicant, even if an illiterate and rustic village woman, not entitled to any relief AIR 1993 SC 1182 distinguished. [Paras 10 & 11
¼1½ flfoy izfdz;k lafgrk] 1908& &/kkjk 115] 104 vk- 9 fu- 13 rFkk vk- 43 fu- 1& &,di{kh; fMdzh vikLr fd, tkus ds fy, vkosnu dh eatwjh dk vkns‘k& &iqujh{k.kh; gS D;ksafd iqujh{k.k vkosnu eatwj dj fn, tkus ij vk-9 fu- 13 ds v/khu dk;Zokfg;ksa dk vafre :i ls fuiVkjk gks tk,xk& &rc vkSj Hkh tc vk- 43 fu- 1 v/khu vihy oftZr gSA ¼iSjk 8½
¼2½ flfoy izfdz;k lafgrk] 1908& &vk- 9 fu- 13& &ifjlhek vf/kfu;e] 1963& &/kkjk 5& &vk- 9 fu- 13 ds v/khu vkosnu Qkby djus ds fy, ifjlhek ,di{kh; fMdzh dh tkudkjh ls izkjaHk gksrh gSa& &fMdzh 30 fnu ds Hkhrj Qkby ugha dh xbZ& &vf/kfu;e dh /kkjk 5 ds v/khu foyac ekQ djus ds fy, vkosnu Qkby djuk pkfg,A ¼iSjk 10½
¼3½ flfoy izfdz;k lafgrk] 1908& &vk- 9 fu- 13& &leu rkehy gqvk& &fyf[kr dFku Qkby fd, x,& &lk{; ds fy, fu;r fd, tkus ls iwoZ ekeys esa gkftjh Hkh& &dkmUlsy us 27 ekl ds le; dh bZIlk dh rRi‘pkr~ dksbZ vuqns"k u gksus dk vfHkopu fd;k& &11 o"kZ ds i‘pkr~ vkosnu Qkby fd;k x;k& 𝔳 foyafcr gS D;ksafd i{kdkj dks ekeys ds ckjs esa iwN&rkN djuk pkfg, Fkh& &vkosnd Hkys gh vf’kf{kr rFkk nsgkrh xzkeh.k efgyk gks] fdlh vuqrks"k dh gdnkj ughaA , vkb vkj 1993 ,l lh 1182 izHksfnrA ¼iSjk 10 ,oa 11½
1. Applicant has assailed order dated 23.3.2005 passed by First Civil Judge Class-II, Burhanpur in Civil Miscellaneous Case No. 12/2000 by which an application filed by respondent under Order 9 Rule 13 read with section 151 of CPC has been allowed.
2. Facts of the case are that:- a suit was filed by Ramdas against respondent for declaration, which was registered as Civil Suit No. 127-A/1984. In the said suit, respondent was served and filed written statement. As the burden of proof was on the respondent, the trial Court directed respondent to lead evidence. Several adjournments were sought and ultimately on 24.1.1989 counsel for respondent pleaded no instructions in the case and the case proceeded ex parte. Thereafter, the petitioner's evidence was recorded and an ex parte judgment and decree was passed against respondent on 25.4.1989. Thereafter, on 16.8.2000 respondent filed an application under Order 9 Rule 13 of CPC for setting aside ex parte judgment and decree dated 25.4.1989. This application was filed on the ground that the counsel for the respondent assured her that her presence is not necessary and as and when the presence would be required, she will be informed. The respondent's son was attending the case. The respondent remained in belief that her counsel shall inform her. On 6.8.2000 and on 8.8.2000, when the applicant obtained copies of the khasra entries from Patwari, she became aware that the revenue entires are against her. Thereafter, she enquired and got the knowledge that ex parte judgment and decree was passed against her. On the aforesaid ground, the application was filed.
3. The applicant contested the application on the ground that the respondent was represented by Shri Vikhe, Advocate who sought various adjournments from 28.10.1986 to 24.1.1989. Lastly on 24.1.1989 Shri Vikhe, Advocate pleaded no instructions from the side of respondent. On the said date, the respondent was also absent. Thereafter, the evidence of plaintiff was recorded and ex parte judgment and decree was passed. It is submitted by the applicant that the respondent was informed and she was aware about the proceedings of the case.
4. The trial Court recorded the evidence in which the respondent appeared herself. She stated in her statement that she was sick and could not attend the case. Thereafter, an ex parte decree was passed against her. This was informed by Patwari that her name has been deleted from the khasra entries. She has also admitted in her statement that her son was attending the Court's hearing. She is not aware about the fact of the case. No document in respect of ailment of respondent was filed though she stated that she remained sick for a period of six months. The trial Court considering the fact that the respondent is an old illiterate lady and is not knowing the legal procedure. On the aforesaid ground the trial Court set aside ex parte judgment and decree which order is assailed in this revision.
5. Learned counsel appearing for the applicant submits that (1) the limitation shall commence from date of decree and not from the date of knowledge as summon was duly served on the respondent. Reliance is placed to a Single Bench judgment of this Court in Rambhau v. Bank of Maharashtra [1991 (I) MPWN 233] and Ghanshyamdas v. Firm M/s. Keshavdas Chhannulal [1991 (I) MPWN 107]. (2) That the respondent ought to have been vigilant in respect of the proceedings of the case and the application has been filed after long lapse of eleven years and four months which delay ought not to have been ignored by the Court below without filing any application under section 5 of the Limitation Act.
6. Learned counsel appearing for respondent No.1 supported the order and submitted that it was the mistake on the part of the counsel for which the client should not suffer. The respondent is illiterate and rustic villager and has been rightly treated by the trial Court so and no interference is needed in this revis
