JUDGMENT
R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 3.2.1999 passed by Additional District Judge, Ludhiana, who affirmed the order dated 27.5.1997 passed by Civil Judge (Junior Division), Ludhiana, who dismissed the applications of Paramjit Singh under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act.
2. The brief facts of the case can be described in the following manner:-
Faquir Singh, respondent (plaintiff in the trial Court) filed a suit against Kabul Singh, Paramjit Singh etc. The suit was to the effect that the defendants be restrained from taking forcible possession of the land in dispute which, according to Faquir Singh, is in his possession. Paramjit Singh was defendant No. 2 in the trial Court. Notice of the suit was given to the defendants. Defendants Nos. 1 and 3 were proceeded ex parte. The suit was contested by Paramjit Singh, defendant No. 2, who even engaged a counsel and filed the written statement. The case was earlier pending in the court of Mr. G.K. Dhir and then it was transferred to the Court of Mr. Harjinder Pal Singh. The case was fixed on 30.1.1995 when neither the defendant No. 2 nor his counsel appeared as a result of which defendant No. 2 was also proceeded ex parte. Thereafter ex parte evidence was recorded and finally vide judgment and decree dated 24.3.1995 ex parte decree was passed in favour of the plaintiff restraining the defendants from dispossessing the plaintiff forcibly from the suit property.
Defendant No. 2 Paramjit Singh filed an application under Order 9 Rule 13 C.P.C. along with application under Section 5 of the Limitation Act for setting aside the ex parte decree and he further submitted that he came to know about the ex parte decree on 12.6.1995 and he did not waste any time from the date of the knowledge and he filed the application under Order 9 Rule 13 C.P.C. on 14.6.1995. The case which was set up by Paramjit Singh in the application under Order 9 Rule 13 C.P.C. as well as in the application under Section 5 of the Limitation Act was that he was suffering from dysentery and he was unable to move on 30.1.1995. When he contacted his lawyer and came to know about the passing of the ex parte decree, he made the application under Order 9 Rule 13 C.P.C. along with the application under Section 5 of the Limitation Act for setting aside the ex parte decree.
Notice of the application was given to the plaintiff who contested the claim of defendant No. 2 Paramjit Singh. The following issues were framed by the Executive Court:-
1. Whether there are sufficient grounds for setting aside the ex parte decree dated 24.3.1995? OPA
2. Whether the application is within the time? OPA
3. Relief.
The learned Executing Court decided both the issues against Paramjit Singh defendant No. 2 and dismissed his applications.
Aggrieved by the order of the lower court Paramjit Singh then filed the first appeal before the Court of Additional District Judge, Ludhiana, who for the reasons given in para No. 11 of the judgment dismissed the appeal and thus aggrieved by the dismissal order dated 3.2.1999, the present revision.
3. I have heard Mr. Kanwaljit Singh, Advocate on behalf of the petitioner, Mr. Suneel Chadha, Advocate on behalf of the respondent and with their assistance I have gone through the records of this case.
4. Order 9 Rule 13 of the Code of Civil Procedure lays down that in any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
Explanation.-…..Sub-rule (2) of Order 9 Rule 13 further lays down that the provisions of Section 5 of the Indian Limitation Act, 1908 shall apply to the applications made under sub-rule (1).
5. Thus the reading of the above provisions would show that an ex parte decree can be set aside if a sufficient cause is shown by the applicant for setting aside the ex parte decree and further the provisions of Section 5 of the Limitation Act have been made applicable to such applications made under Order 9 Rule 13 C.P.C.
6. Before I deal with the submissions raised by the learned counsel for the parties, it will also be proper on my part to make a reference to the provisions of Article 123 of the Limitation Act, according to which in order to make an application under Order 9 Rule 13 C.P.C, the limitation of 30 days has been prescribed from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. In the present case, defendant No. 2 was served and, therefore, the limitation has to be taken 30 days from the date of the decree. But as I have stated above that the provisions of Section 5 of the Limitation Act are also applicable, therefore, reference has also to be made to those provisions which lay down that if the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application, such delay may be condoned. The scope of Section 5 of the Limitation Act has been considered from time to time by the different Courts including the Hon’ble Supreme Court and by this time the proposition is well settled that a liberal approach is to be adopted and sufficient cause must be made out in a pragmatic manner and a strict approach calling upon a party to explain each day’s delay is to be avoided.
7. The learned counsel appearing on behalf of the respondent vehemently opposed the petition of Paramjit Singh by submitting that the petitioner was negligent when he did not appear before the trial Court on 30.1.1995 and also did not bother about the subsequent proceedings and allowed the plaintiff-respondent to obtain an ex parte decree. The learned counsel even submitted that this point of fact has also been considered by the two courts and, therefore, in revision the impugned order should not be set aside. He further submitted that a great injustice would be caused to the plaintiff-respondent in case the impugned order is set aside for the advantage of the petitioner. He lastly submitted that even in the application under Section 5 of the Limitation Act and under Order 9 Rule 13 C.P.C. the petitioner has not been able to show sufficient cause and, therefore, the impugned order is liable to be maintained.
8. I have considered the submission raised by the learned counsel for the respondent and in my opinion the impugned orders should be set aside. The case of Paramjit Singh throughout was that he earlier engaged a counsel. When a litigant has reposed confidence in a lawyer his expectations would always be that his lawyer would give appearance on his behalf before the court on each and every date of hearing and he would be informed about the proceedings. In this case the petitioner had engaged the lawyer and filed the written statement. On 30.1.1995, the written statement was already before the trial Court. The trial Court could have framed the proper issues even at its own level without the assistance of the counsel for the parties and could have adjourned the case for the evidence of the plaintiff. Be that as it may, the ex parte decree was passed on 24.3.1995. The defendant possibly could not comprehend that the suit will be disposed. of in such a short term. A litigant always conceives in his mind that he would be examined in the court through his lawyer while defending the case. It is also the case of the applicant that on 30.1.1995 he was suffering from dysentery and for that reason he could not give the appearance in the Court. With regard to the application under Section 5 of the Limitation Act, it is pleaded by the petitioner that he came to know about the ex parte decree on 12.6.1995 and thereafter he did not waste any time in filing the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 C.P.C. The application under Section 5 was supported by an affidavit. There is also a statement of the petitioner that he could not contact his counsel in between 24.3.1995 and 12.6.1995 when he actually came to know about the passing of the ex parte decree.
9. Repeatedly it has been stated by the law courts that procedure should never become a hindrance or obstacle in the administration of justice. The intention of the law courts should always be to impart justice to the parties and justice should not be sacrificed on the threshold of technicalities. I am not laying down the law that in all eventualities the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 C.P.C. are supposed to be allowed. But this Court has the anxiety to say that liberal approach should be given by the law courts so that substantial justice must be imparted to the litigants so that they may not conceive a wrong impression from our judicial system that the law of the land has gone down in the deep sea. Even this Court feels that the present is a case where the plaintiff can be compensated with suitable costs.
10. Resultantly, the ex parte judgment and decree dated 24.3.1995 and the orders dated 27.5.1997 and 3.2.1999 passed by the trial Court and first appellate court respectively are hereby set aside subject to payment of Rs. 2,000/- as costs which shall be conditional. Directions are given to the trial Court to re-admit the suit to its original number and to decide the case within one year from the receipt of the copy of the order.
11. If the petitioner does not pay the costs on the next date of hearing, his revision for all intents and purposes shall be deemed to have been dismissed and the orders of the courts below shall have their effect.
Parties through their counsel are directed to appear before the learned trial Court on 30.9.1,999.