S.K. Keshote, J. - (1.) SRI . Rajeev Joshi, learned counsel for the petitioner. Sri Y.S. Bohra brief holder of Sri R.P. Goyal, learned counsel for the respondent No. 3. Standing Counsel for the respondents No. 1 and 2. The plaintiff -respondent No. 3 filed a suit No. 2 of 1982 in the court of Civil Judge, Mathura for specific performance of an agreement to sell in respect of certain plot of land situated in village Gukhrauli, pargana Sadabad, district Mathura which has been alleged to have been executed by the defendant -petitioner on 15 -1 -1981. The defendant -petitioner has been served with the notice of the said suit on 25.1.1982. The defendant -petitioner engaged a counsel. An application has been filed on 1.4.1982 by the defendant -petitioner, in which a prayer has been made for the grant of time to file a written statement. The time has been granted but the defendant -petitioner did not file the written statement. Again on 1.7.1982 the same request has been made, which has been allowed by the learned trial court and one month's time has been granted to the defendant -petitioner to file the written statement. The next date was fixed 2.8.1982 but no written statement has been filed even on the said date by the defendant -petitioner and as such the learned trial court passed an order to proceed exparte in the matter against him and fixed 20.8.1982 the next date in the case. On the next date i.e. 20.8.1982 ex -parte argument had been heard in this case and judgment was reserved. On 26.8.1982 the ex -parte decree has been passed in the suit. The defendant -petitioner filed an application under order 9, R.13 C.P.C. and another application under Section 5 of the Limitation Act 1963 on 4.11.1992.
(2.) THE grounds which have been taken by the petitioner in the said application are that he is an issueless disabled person and as such he was unable to come to attend the court personally. He sent a Vakalatnama and an application from his village to the counsel through one Sri Chhidda Lal and he was asked to enquire about the date of the case. Sri Chhidda, it is alleged in the said application, remained busy in connection with his own litigation and could not enquire about the date fixed in the case after 1.7.1982 and that he had also not been informed of the said date fixed by his counsel. It has further been stated that the defendant's relation with Sri Chhidda became strained and he did not know about the date 2.8.1982 fixed in the case, hence no written statement could be filed. It has further been stated that the petitioner -defendant went to Chandraban on 15.7.1982 and remained there till 30.10.1982. On 1.11.1982 he returned to his village. On 2.11.1982 he came to the court and from the court diary he could know that the said suit has been decreed on 26.8.1982. Alongwith the said application an application supported by an affidavit under Section 5 of the Limitation Act for condonation of delay in filing the said application had also been moved by the defendant -petitioner. This application was contested by the plaintiff -respondent. The learned trial court vide its order dated 5.4.1983 rejected both the said applications, which were filed by the defendant -petitioner under Section 5 of the Limitation Act for condonation of delay and under order 9, R.13 C.P.C. for setting aside the ex -parte decree dated 26.8.1982. Against the aforesaid Order of the trial court dated 5.4.1983, the petitioner filed an appeal which too has been dismissed by the IIIrd. Addl. District Judge, Mathura vide his order dated 13.3.1984. The petitioner has thereafter filed the present writ petition before this court assailing the aforesaid orders of the courts below. Sri Rajeev Joshi, learned counsel for the petitioner has argued that both the courts below have not recorded any finding on the question of disability of the petitioner. He next argued that the petitioner has made out sufficient cause for his absence on the date the ex -parte decrees was passed in the suit but even then his aforesaid both applications have been dismissed by the trial court vide its judgment and order dated 5.4.1983 which has been affirmed by the appellate court. Lastly, he argued that the learned appellate court has wrongly stated in its judgment that one Shiv Charan Sharma had filed an affidavit in support of the application under Section 5 of the Limitation Act which goes to show that the petitioner engaged other person to do the pairvi of the case on his behalf. In support of his arguments Sri Joshi placed reliance on the decisions in the cases of Sangram Singh v. Election Tribunal, Kotah and another : A.I.R. 1955 SC 425, Khursheed v. Ist Addl. District Judge, Moradabad & Ors. : 1988 A.W.C. 1366.
(3.) SRI Bohra holding the brief of Sri R.P. Goyal, learned counsel for the contesting respondent, on the other hand, has argued that the petitioner has failed to make out sufficient cause for condonation of delay in filing the application under Order 9, R.13 C.P.C. for setting aside the ex -parte decree. He further has argued that it is not a case where the summons have not been properly served on the petitioner. In this case, he argued, that the petitioner had engaged an Advocate and Sri Chhidda Lal was the person who was asked to do the pairvi of the case on his behalf. Twice application has been moved for grant of time to file the written statement and the learned trial court has granted the time. Sri Bohra further argued that the petitioner by putting all the blame on the counsel or on Sri Chhidda Lal has tried to make out a case for setting aside the ex -parte decree; that he is not a disabled person as he is doing his own farming and he had himself come to the court to file the application for setting aside the ex -parte decree; that his relation did not become strained; that he had come to know about the passing of the said decree on 30.8.1982 when the contesting respondent himself informed him about the passing of the said decree; that instead of complying with the decree he had stated that he should file an application for setting aside the decree and linger on the suit; that on 18.10.1982 the contesting respondent came to know that the petitioner is going to file an application for setting aside the decree and having the apprehension that the petitioner may do any wrong with the summon which has been served upon him, the contesting respondent moved an application on 19.10.1982 in the court that the concerned summon may be put in a sealed cover. Lastly, Sri Bohra placed reliance on a decision of this court in the case of Mahraj Singh v. Bishambhar Dayal, (sic)82 A.L.J. 897 and argued that in this case on the questions whether the petitioner has sufficient cause for condonation of delay in filing of the application for setting aside the decree and whether he was prevented by sufficient cause from attending the court on the date the suit was decreed were purely questions of fact and both the courts below have recorded concurrent finding of facts on these questions of facts and that this Court cannot sit as a court of appeal on these questions as it is only a case of appreciation of evidence and this Court cannot reappreciate the same. Sri Bohra further argued that it is not a case where the findings are perverse or are based on extraneous and irrelevant considerations and that it is also not a case of the petitioner that the said findings are based on surmises and conjectures. So fax as the question of petitioner's disability is concerned, Sri Bohra submitted that the petitioner did not produce any evidence on this question and as such there was no occasion in the present case to record any finding on this question. He also contended that, therefore, the petitioner has failed to make out any case that there is any error on the face of the orders passed by the courts below.;