Decided on October 18,1982

OM PARKASH Appellant


I.K.Kotwal, J. - (1.) This revision petition arises in the following circumstances : Mahant Hari Krishen, the respondent herein brought a suit for ejectment and recovery of Rs. 5,600/- for use and occupation of the suit house against the two petitioners, Om Parkash and Satpal and one Neak Ram in the court of Sub-Judge, Jammu. The defendants having failed to appear despite service, an ex parte decree for ejectment and recovery of Rs. 5,600/- was passed on 10-11-1979 against the petitioner Om Parkash alone and the suit was dismissed against the other two defendants. An application for setting aside the same was made on 4-3-1980 by the petitioners in terms of Order 9, Rule 13, C. P. C. on the grounds : firstly, that they were not duly served in the suit; secondly, that in spite of that they had engaged one Mr. B. K. Bhasin, advocate to represent them in the court, who acted negligently and allowed the suit to proceed ex parte against them; thirdly, that he never informed them that an ex parte decree had been passed against them; and fourthly, that they had learnt about the decree for the first time on 28-2-1980, whereafter they applied for a copy of the decree and filed the application immediately after the copy was obtained.
(2.) Objections to this application, denying all the allegations therein, were filed by the respondent. The parties also led evidence and the trial court on consideration of the same dismissed the application holding that the petitioners were not only duly served in the suit, but they had even otherwise acquired the knowledge of the suit from their counsel Mr. Bhasin, as also of the ex parte decree from the respondent and his witness Dalbir Singh more than thirty days before the application came to be filed. Relying upon a single Bench decision of this court in Shanker Dass v. Hans Raj, 1974 Kash LJ 1, the court further held that negligence of their counsel was the negligence of the petitioners, and consequently dismissed the application on the point of limitation.
(3.) An appeal from the aforesaid order was taken to District Judge, Jammu, which also met with the same fate. The learned District Judge dismissed it by holding that the application for setting aside the ex parte decree was barred by time, because not only had the petitioners been duly served in the suit, but also because they had acquired full knowledge of the suit from their coun-sel Mr. Bhasin. He, however, did not advert to the finding recorded by the trial court that they had also acquired any knowledge of the decree from the respondent and his witness. As both the petitioners as well as their counsel in his opinion were equally negligent in defending the suit, he dismissed the appeal on the ground that the application for setting aside the ex parte decree was barred by limitation.;

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