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CASE NO.: Appeal (civil)  4881 of 2007

PETITIONER: Mahabir Singh

RESPONDENT: Subhash & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.9325 of 2005)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant is before us being aggrieved by and dissatisfied with a  judgment and order dated 14.2.2005 passed by the High Court of Punjab and  Haryana in Civil Revision Petition No.5999 of 2003 whereby and  whereunder the Revision Application filed by the first respondent herein was  allowed. 3.      Appellant filed a civil suit on or about 6.4.1985.  Summons of the suit  were served upon the first respondent.  He did not appear.  An ex parte  decree was passed against him on 19.2.1986.  An application for mutation on  the basis thereof was filed which was allowed on 07.03.1996.  Allegedly, the  first respondent having come to know about passing of the said ex parte  decree on 03.02.1997, filed an application on 07.02.1997 for setting aside  the same, in terms of Order IX Rule 13 of the Code of Civil Procedure.  The  learned Trial Judge, by reason of an order dated 28.07.2000, dismissed the  said application, inter alia, holding that summons had been duly served upon  the first respondent.  It was furthermore noticed that the first respondent  herein, while examining himself in the said proceedings under Order IX  Rule 13 of the Code of Civil Procedure in his cross-examination, admitted  that one and a half year prior to filing of the said application, he and his  brother approached Dharam Singh for getting the judgment and decree set  aside but he negated their plea.   4.      An appeal was preferred thereagainst.  The Appellate Court also  affirmed the said finding holding : \02312.In this case, Ex.A1 to Ex.A3 are the record of  ownership which is not disputed.  Ex. R3 I the copy of  summon which clearly shows that Subhash refused to  accept the service of summons.  It also shows that the  copy of summons was also affixed on his house.  This  report is duly attested by clerk of Court as per Ex.R4/B  and affidavit has also been given by Jogi Ram process  server and affidavit has also been given by Jogi  Ramprocess server and Subhash was to appear in court  on 7.5.85 but he did not appear in the court and then the  court has ordered for substituted service.  But after  munadi effected in the village also, the defendant failed  to appear in court as per Ex.R1, Ex.R2 is the report of  Ram Mehar, process server who got effected the munadi.   No doubt Nand Lal Chjowkidar has denied his thumb  impression but it carried no help to the defendant in view  of the statement of RW-1 Ram Mehar, process server.   There is no report on the file that the summons does not  bear the thumb impression of Nand Lal Chowkidar.   Statement of PW2 Nand Lal is self contradictory as he  has pleaded that he has no knowledge that the process

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server has affixed the copy of summons on the house of  Subhas.  He has also stated that he has no knowledge that  about ten years back court officials brought this summon  to him.  He has shown his ignorance about the pendency  of the case.  He has also shown his ignorance about the  munadi effected by him twelve years back.  He has even  not been able to tell that he was shown as a witness.   There is no reason to disbelieve the statement of Ram  Mehar, process server with regard to the report of refusal  of Subhas, appellant RW-2 Dilbag Rai Jain has also  proved that the summon were duly executed upon the  defendant who refused to accept the same.  So there is no  illegality or irregularity in thie service of summons.   Rather the learned trial court has given double  opportunity not only after the refusal by the defendant to  appear in the court but as well as by getting the defendant  served through munadi.  Since the defendant  intentionally did not appear in the court so the learned  trial court has rightly passed the ex parte judgment and  decree dated 19.2.86. 13.     Admittedly the decree under challenge was passed  in the year 1986 while the present application for setting  aside the ex parte judgment and decree was filed on  6.2.97 i.e. almost after eleven years of passing of the  impugned decree.  So far as the delay in filing the  application is concerned, no doubt the defendant has tried  to prove that he came to know recently about the decision  of the case but this version is not tanable when PW1 Ram  Mehar, process served has categorically stated that about  1-1/2 years back he alongwith his brother, went to  Dharam Singh and Dharam Singh told them that they  have got no concern with the plot in question and that he  would not set aside the decree.  He has also stated that he  has told his relatives that 10/11 days prior filing this  application.  This clearly shows that the defendant was  well aware of the decree in question and he can file the  present application within one month of the passing of  the decree.  He is to explain each days delay.  So it can  be safely eld that the application is time barred.  Thus,  the findings of the learned trial court recorded under  issue No.1 and 2 are hereby affirmed and these issues are  decided against the appellant-defendant and in favour of  the respondents-plaintiffs.

5.      The Revision Application filed thereagainst by the first respondent  herein was allowed by the High Court.  The High Court in the impugned  judgment opined that the appellant had played  fraud on the Court as neither  the summons were properly served, nor the publication was made in the  newspapers.  Order V Rule 19A of the Code of Civil Procedure, which,  according to the High Court, could have been taken recourse to, had also not  been resorted to.  Adverse comments were also made by the High Court in  regard to the application for mutation filed by the appellant only after 10  years, i.e., in the year 1996. 6.      The approach of the High Court, in our opinion, was not correct.   There exists a presumption that the official act was been done in ordinary  course of business.  Admittedly, an ex parte decree was passed.  Defendant  for getting it set aside was required to establish that either no summons was  served on him or he had sufficient cause for remaining absent on the date  fixed for hearing the suit ex parte.   7.      Article 123 of the Limitation Act, 1963 provides for 30 days time for  filing such an application.  The said provision reads thus :       Description of application      Period of            Time from which                                                 Limitation          period begins to run

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123.    To set aside a decree           Thirty days         The date of decree or         passed ex parte or to   where the summons         re-hear an appeal decreed                                    or notice was not duly         or heard ex parte.                                           Served, when the                                                                       applicant had          Explanation:\027 For  the                                    knowledge of the          Purpose of this article,                                     decree.         Substituted service under         Rule 20 of Order V of the         Code of Civil Procedure,         1908 (5 of 1908) shall not         Be deemed to be due service.

8.      Thus, even assuming for the sake of argument that no proper step was  taken by the appellant herein for service of summons upon the respondent  and/or the service of summons was irregular, evidently, it was for the  defendant-respondent to establish as to when he came to know about the  passing of the ex parte decree.  Even in his cross-examination, the first  respondent has categorically admitted that he had approached the appellant  herein for not giving effect thereto one and half year prior to filing of the  application, and, thus, he must be deemed to have knowledge about passing  of the said ex parte decree.  The period of limitation would, thus, be  reckoned from that day.  As the application under Order IX Rule 13 of the  Code of Civil Procedure was filed one and a half year after the first  respondent came to know about passing of the ex parte decree in the suit, the  said application evidently was barred by limitation.   9.      In terms of Section 3 of the Limitation Act, 1963, no court shall have  jurisdiction to entertain any suit or application if the same has been filed  after expiry of the period of limitation.  The High Court could not have  ignored the said jurisdictional fact. 10.     For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  The appeal is allowed with costs.  The  counsel\022s fee assessed at Rs.10,000/- (Rupees ten thousand only).