JUDGMENT
K.S. Rathore, J.
1. Brief facts of the case are that a suit was filed by the plaintiff (Padmawati) for rent and eviction against the defendant (Ram Chandra) on 12.12.67 on 5.9.68, defendant Ram Chandra filed written statement and denied the allegation of plaintiff and stated that the defendant is owner of the property in question. Since Ram Chandra defendant died on 12.7.73, his legal representatives were taken on record on 16.1.75.
2. The suit was dismissed in default on 11.7.79 and same was restored on 29.7.80 and after restoration the suit was transferred to AMJM No. 3, Jaipur City on 29.4.81. Again the case was transferred to AMJM No. 7, Jaipur City from AMJM No. 3, Jaipur City on 20.12.82. During the pendency of the suit, plaintiff Smt. Padmawati also died on 21.12.81 and her legal representatives were taken on record on 19.3.82.
3. The plaintiff filed an application under Order 22 Rule 3 CPC and notices were issued to the defendant on 20.4.82 and after service ex parte proceedings were initiated against the defendant petitioner No. 1 Munna @ Radha Kishan on 15.7.81. Ex parte order was also passed against other defendants after service affected through substituted mode service on 16.8.82. Ultimately, the suit was decreed ex parte in favour of the plaintiff respondent on 10.12.82.
4. It was also alleged that the petitioner defendant first time came to know about the ex parte decree on 15.3.97 when the Nazir has come to the defendant house for taking possession on the basis of ex parte decree dated 10.12.82. Within the period of thirty days, the petitioner defendant filed an application on 5.4.97 under Order 9 Rule 13 CPC for setting aside the ex parte decree and same was dismissed vide judgment dated 3.9.2002 on the ground that the petitioner had the knowledge about the ex parte decree earlier to 15.3.97 and further on the ground that the petitioner has not filed application under Section 5 of the Limitation Act to explain the delay in filing the application under Order 9 Rule 13 CPC.
5. The petitioner also preferred an appeal against the order dated 3.9.02 whereby the application of the petitioner under Order 9 Rule 13 was dismissed. The appellate court also dismissed the appeal of the petitioner defendant vide judgment dated 6.1.2006. Aggrieving and dissatisfying with the judgment dated 3.9.2002 passed by the trial court and dated 6.1.2006 passed by the appellate Court, this present petition is preferred.
6. Learned Counsel for the petitioner referred Schedule 123 of the Limitation Act. Schedule 123 provides that to set aside a decree ex parte or to re hear the appeal decreed or heard ex parte limitation prescribed thirty days. To determine this limitation either the limitation should be counted from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.
7. As submitted by the learned Counsel for the petitioner that he came to know about the ex parte decree was filed on 5.4.97. Thus, within the prescribed limitation of 30 days, the petitioner filed application for setting aside the ex parte decree. Therefore, the application under Section 5 to explain the delay is not required to be filed along with the application and the trial court as well as the appellate court have seriously erred not to consider this fact that the limitation be counted from the date of knowledge and immediately after the date of knowledge i.e. within the period of 30 days, the petitioner filed the application.
8. In support of his submissions, learned Counsel for the petitioner placed reliance on the judgment of Hon’ble the Supreme Court in the case Gauhati University v. Mihar Lal Bhattacharjee wherein Hon’ble the Supreme Court has held as under:
summons was not duly served and the limitation began to run only when appellant had knowledge of the ex parte decree. Since the application for setting aside the ex parte decree was filed within 30 days from the date of the knowledge, the application was not barred by limitation.
9. He also referred the case of Rajasthan State Electricity Board v. Firm Suratgarh Cotton and Pressing Factory, Suratgarh reported in 1984 RLW 250 wherein also, this High Court has held as under:
on the ground that the application was barred by time, since the limitation started running from the date of the decree and not from the date of the knowledge – It is against this order that the miscellaneous appeal has been filed, the defendants have also challenged the ex parte decree on merits by way of regular first appeal and it was further held that “is sufficient cause is shown by the petitioner, ex parte decree can be set aside on payment of cost.
10. Second submission of the petitioner is that as per the provisions of Civil Procedure Code, the summons should be issued in ordinary process as well as through registered post and in support of his submission placed reliance on the judgment rendered by this Court in the case Satyanarain Agarwal v. V. Jasraj Singh and Anr. reported in 1996 (3) RLW (Raj.) 393 wherein summons for service to be sent – The plaintiff submitted summons to be sent by registered post without A.D. – No summons were submitted for service in ordinary process – Summons sent through post not proved to be served – Defendant was thus not served and it was held that the decree is liable to quashed and set aside on this count alone.
11. After referring these judgments the petitioner referred the order sheet to show that the summons were issued through registered post and it is also submitted by the learned Counsel for the petitioner that though the written submissions were submitted on behalf of the petitioner but after submission of the written submission, the suit filed by the respondent-plaintiff was dismissed in default and restoration order was passed without issuing notice to the petitioner and thus as per the mandatory provisions of the law after restoration of the suit the notice should be duly served upon the petitioner and the presumption drawn by the court below that service is sufficient is also contrary to the provisions as the notice through ordinary process has not been issued by the court.
12. Thus, ex parte decree is contrary to the settled provisions of law and also contrary to the facts and circumstances of the case as the notice which was alleged to be served upon the petitioner was never served and the service which was considered sufficient cannot be treated as sufficient service and statement made on behalf of the defendant petitioner should be believed. In support of his submissions he placed reliance on the judgment rendered by Hon’ble the Supreme Court in the case Sushil Kumar Sabharwal v. Gurpreet Singh and Ors. wherein Hon’ble the Supreme Court held that “Ordinarily, court of facts should have believed the defendant’s statement.
13. Per contra, learned Counsel for the respondents submitted that the submissions made on behalf of the petitioner is not only contrary to the facts but contrary to record also. The application for setting aside the ex parte decree was filed by the petitioner after lapse of more than 14 years. It is also contended that the petitioner had filed written statement and the petitioner was well aware about the suit and has deliberately not appeared before the trial Court and thus the ex parte decree was passed against the petitioner.
14. Learned Counsel for the respondents submitted that notices through registered post also issued through ordinary process and service was made effective on the petitioner and for rest of the petitioners, the service was made through substituted mode by way of publication in the news paper. Thus, the application filed by the petitioner for setting aside the ex parte decree without explaining the delay and without filing application under Section 5 is not maintainable and rightly rejected by the court below.
15. In support of his submissions, he placed reliance on the judgment rendered by this Court in the case Sumer Singh v. Pushpa Motors and Ors. reported in WLC (Raj.) 2000 (3) 460 wherein this Court has held as under :
The object of fixing time limit in such matters is of great importance as it is founded on public policy and the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but are meant to help those parties who seek their remedies promptly. The law of limitation is thus founded on public policy to see that there should be redressal of legal injury suffered by a party but also to see that every legal remedy must be kept alive for a legislatively fixed period of time. Though the condonation of delay is a matter of discretion of the court but Section 5 of the Limitation Act does not say that such discretion can be stretched too far so as to condone any length of time. There has to be rationale criterion as regards exception to the explanation seeking condonation of delay. In some cases, delay of a very long range can be condoned provided the explanation thereof is satisfactory. The words ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, but it does not mean to infer that the delay should be condoned in each and every case unless discretion exercised by he court is on untenable grounds or is arbitrary or perverse and in that eventuality, it would be a different matter.
16. He also referred the judgment rendered by this Court in the case “Badri Narayan Sharma v. Panchayat Samiti Dhariawad wherein it was held that “The summons in Article 123 refers to summons for the first hearing and if that has been duly served, the period will commence from the date of the decree, regardless of whether the notice for further hearing by the transferee court was duly served or not”.
17. Also relied on the judgment of this Court in the case Rawal Das v. Vasudevi reported in 1978 RLW 151 wherein this Court has held as under:
The provisions of this article apply only where the defendant has not appeared at all – if the defendant appears but subsequently absents himself and a decree is passed ex parte, time shall be reckoned from the date of the decree.
18. Also relied on the judgment of Hon’ble Supreme Court in case Sri Lal Sah and Ors. v. Gulab Chand Sah and Ors. wherein Hon’ble the Supreme Court has held as under:
In view of the evidence as accepted by trial court about respondents knowledge of the decree in 1977 itself, application under Order 9 Rule 13 barred by limitation – High Court erred in interfering with the orders passed by Courts below in exercise of its revisional jurisdiction under Section 115 Civil Procedure Code, 1908, Section 115 and Order 9 Rule 13.
19. Having considered the rival submissions of the respective parties and perused the order impugned dated 6.1.2006 passed by the Additional District Judge No. 1, Jaipur City, Jaipur, and the judgments and provisions referred by the respective parties, in the order impugned dated 6.1.206, the trial court has considered all the aspects. The averment made on behalf of the petitioner that the trial court on the basis of limitation only rejected the application for setting aside the ex parte decree, is not correct. Even though, considering the submissions made on behalf of the petitioner and taking it as stated by the petitioner that the petitioner first time came to know about the ex parte decree on 15,3,97 and considering this fact further that the application for setting aside the decree was filed on 5,4,97 i.e. within the period of 30 days as stipulated under Clause 123 of the Limitation Act, then also, on the other reasons upon which the ex parte decree is passed, the petitioner is not able to make out any case for interference by this Court while exercising revisionary power, as the court below has also held that notices were issued to the petitioner and duly served and it is also not disputed that the petitioner was well aware of the suit proceedings. The suit was dismissed in default and restored and after restoration the service was effected through registered post and through substituted mode gives no valid reason to challenge ex parte decree after lapse of more than 14 years. The trial court has passed reasoned order while rejecting the application for setting aside the ex parte decree and in view of the ratio decided by Hon’ble the Supreme Court, this is not a fit case where any interference whatsoever Is called for.
20. Consequently, the writ petition fails and is hereby dismissed.