Poonam Srivastav, J. - (1.) HEARD learned Counsel for the revisionist.
(2.) THE instant civil revision has been preferred challenging the order dated 24th January, 2011 passed by the Additional District Judge, Fast Track Court No. 2, Hazaribagh in Miscellaneous Appeal No. 13 of 2009 whereby the ex parte decree dated 18th April, 2006 was passed and the decree signed on 21st April, 2006 was quashed. Eviction Suit No. 15 of 2004 was instituted against the Petitioners -opposite parties who are the tenants. The suit was decreed ex parte. The admitted position is that the summons were served by the process server on the wife of the Defendant, who is not a party to the suit. She denied receipt of summons whatsoever and clearly stated that the summons were never served to the Defendant personally, whereas the date of knowledge as asserted by opposite party is 20th February, 2008. The Defendant -opposite party applied for certified copy of the judgment through Clerk Kundan Kumar who is a clerk of some Advocate. He has also deposed that he is not registered under any particular Advocate but he performs miscellaneous work as and when entrusted by the litigant or any Advocate, and in this case, he was personally known to the Defendant and he has applied and obtained the certified copy of the judgment.
(3.) THE learned court, while allowing the application under Order IX Rule 13 of the Code of Civil Procedure, recorded a finding that the date of knowledge was 22nd April, 2008 and, therefore, treated the application within the period of limitation. The objection of the learned Counsel is primarily on the ground that it was an application to set aside the order and ex parte decree at a very belated stage and no application under Section 5 of the Indian Limitation Act was moved for condonation of delay. In view of the decision of the Apex Court in the case of Mahabir Singh v. Subhash and Ors. (2008 (1) JLJR 75), the application was not maintainable by itself without an application for condonation of delay. The learned Counsel has stressed on the fact that the tenant had knowledge although but he was avoiding service of summons intentionally and deliberately. He did not appear in the court with the purpose to delay the proceedings.;