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. 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. 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. 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. 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.
(3.) 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. 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 vs. Mihar Lal Bhattacharjee reported in 1995 (6) SCC 731 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". He also referred the case of Rajasthan State Electricity Board vs. 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". ;