Full Judgment
Ashutosh Mohunta, J.
1. This petition is directed against the judgments and decrees dated 5.10.1982 and 14.9.1983 passed by the Sub Judge 1st Class, Pathankot, and District Judge, Gurdaspur, vide which the application filed by the defendant-petitioner under Order 9 Rule 13, Code of Civil Procedure, for setting aside the ex parte decree dated 7.8.1980 passed by the Sub Judge, 1st Class, Pathankot, was dismissed.
2. In brief facts of the case are the ex parte decree dated 7.8.1980 for ejectment of the defendants from the shop in dispute was passed in favour of the plaintiffs. Pawan Kumar, defendant filed an application under Order 9 Rule 13, C.P.C. for setting aside the ex parte decree on the ground that he was not served in the suit. The application was contested by the plaintiffs. On the pleadings of the parties, the Sub Judge 1st Class, Pathankot, framed the following issues:-
1. Whether there are sufficient grounds for setting aside the ex parte decree? OPA
2. Whether the application is within time? OPA
3. Relief.
Issue No. l was decided in favour of the petitioner. However, issue No. 2 was decided against him and it was held that the application was filed beyond the prescribed period of limitation. Consequently, the application filed by Pawan Kumar defendant was dismissed vide judgment dated 5.10.1982 passed by the Sub Judge, 1st Class, Pathankot. The appeal filed by Pawan Kumar defendant was also dismissed by the District Judge, Gurdaspur, vide judgment dated 14.9.1983. Now Pawan Kumar has filed the present revision petition to challenge the judgments passed by both the Courts below.
3. The only point raised by Mr. Sanjay Majithia, learned counsel for the petitioner, is that once it is held that the defendants were not properly served, then the question of limitation becomes irrelevant and the Courts below ought not to have dismissed the application of the petitioner on the ground of limitation alone. The counsel has placed reliance on Parma Nand Bhalothia and Sons v. Adarsh Oil Mills, Bazar Gandhanwala, Amritsar,1 (1976)78 P.L.R. 485; Sant Kaur alias Basant Kaur v. Khazan Singh and another? 1989 P.L.J. 419, Sarwan Kumar v. Shyam Mangla? (1990-1)97 P.L.R. 152 and Amarjit Singh v. Harnam Singh,4 1990(1) Revenue Law Reporter 321;1991 P.L.J. 22.
4. The contention raised by Mr. Majithia has been controverted by Ms. Alka Sarin. It has been contended by her that merely because the service on the defendant was held to be invalid, the defendant is not conferred with the right to move the Court at any point of time. The defaulter is required to explain the sufficient cause to move the Court at a belated stage.
5. After hearing the learned counsel for the parties and on going through the case law cited by Mr. Sanjay Majithia, I find merit in the contention raised by Miss Alka Sarin, learned counsel appearing on behalf of the plaintiffs. The plank taken by the petitioner is that he came to know about the ex parte decree on 24.11.1980 when the bailiff came to deliver the possession of the shop in dispute to the plaintiffs. It has come in the statement of Pawan Kumar petitioner that there were persons named Hem Raj Nand. Agya Ram, Radhey Sham and Mori Lal present at the spot when the court official came to the shop in order to deliver its possession to the plaintiffs after getting it vacated from him. None of the eye-witnesses, named above, has been examined by the petitioner in order to corroborate his version. Under Section 5 of the Limitation Act, reasons for delay has to be explained. The defaulter is required to show 'the sufficient cause for not.... making the application' within the prescribed period of limitation. It is the subjective satisfaction of the Court in the matters for condoning the delay. Both the Courts below have concurrently held that the petitioner had failed to explain the delay in filing the application under Order 9 Rule 13, C.P.C. The facts of the case-law cited by the learned counsel for the petitioner are not relevant to the facts of the present case.
6. In the light of the above discussion, I do not find any infirmity in the well-reasoned judgments passed by both the Courts below.
7. Consequently, there is not merit in this revision petition. It is accordingly, dismissed. However, there shall be no order as to costs.