Judgment:
1. On behalf of the respondent to this appeal, an application has been filed for vacating the stay that has been granted by this Court. The entire controversy that is involved in this appeal can best be resolved once and for all rather than through the piece meal orders. I find that the appeal is directed against an ex parte decree passed by the trial Court on 21-7-1993 in a suit instituted by the present respondent. The dispute related to certain immoveable property and admittedly, the summons had been served on the defendants who failed to appear before the Court for which reason the learned trial Judge decreed the suit on 21-7-1993. On 24-8-1993, i.e., after the lapse of 34 days, an application under Order 9, Rule 13, C.P.C., was filed by the defendants who are the present appellants for setting aside the ex parte decree. The case made out was that the parties are related to each other, that after the service of the summons, a Panchayath was held in the village and that the elders had advised the plaintiff to withdraw the suit which he is alleged to have agreed to do and consequently, the defendants submitted that they did not appear before the Court, because they were under the assumption that the suit was withdrawn. It was shortly after the decree was passed that they came to know that the case had been decreed against them.
2. The original plaintiff who is the respondent to this appeal, denied that any such compromise talks had taken place or for that matter, that he had agreed to withdraw the suit. It was his contention that the summons having been duly served and the decree having been passed, that no valid cause had been shown for setting aside that decree. The second contention taken up was that the time period of 30 days had elapsed since the passing of the decree and that the application for setting aside was barred by limitation and since no application had been filed for condonation of delay, that the application itself was liable to be dismissed. The learned trial Judge after recording the evidence of one witness on each side, heard the learned advocates and passed an order dismissing the application and confirming the decree. The principal ground on which the learned trial Judge proceeded was that an application under Order 9, Rule 13 is not specifically provided for under Section 12 of the Limitation Act and that, some of the Courts have taken the view that such an application does not qualify for exclusion of time as far as the copying period is concerned. The view taken by the trial Court was that there is no provision for condonation of delay as far as this category of application is concerned and that consequently, the same was liable to be rejected. It is this order that is the subject matter of the present appeal.
3. On behalf of the appellant, it is submitted that in an application for setting aside the ex parte decree, all that is required to be done is that just and valid cause has to be put forward for the non-appearance. It is contended that the delay was marginal in so far as it was only 3 days, but more so, that if the copying period of 7 days is excluded, that the application was in time and that, therefore, there was no need to file any separate application for condonation of delay. It is also contended that the view taken by the learned trial Judge that it is not permissible to condone the delay assuming there was some such delay is untenable in law.
4. On behalf of the respondent, his learned advocate has vehemently opposed the setting aside of the decree, because he submits that after the service of the summons, considerable period of time had elapsed and that it was not as though the Court, all of a sudden and without due notice to the defendants, placed the matter on board and decreed the suit. He also points out that if the defendants had contended that a Panchayath had been held, since the plaintiff had denied this fact and had also denied that he had agreed to withdraw the suit, that it was incumbent on the part of the defendants to establish before the Court either through the affidavits or the oral evidence of the persons who had presided over the Panchayath that such an understanding had been arrived at. He submits that in the absence of such evidence, the refusal on the part of the trial Court to set aside the decree is perfectly justifed.
5. As regards the issue of limitation, the learned advocate had drawn my attention to the provisions of Section 12 of the Limitation Act, which reads as follows:--
'Section 12(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation:-- In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'
The principal contention is that whereas there is reference to suits, appeals or applications in sub-section (1), that there is no reference to a Miscellaneous Petition for setting aside an ex parte decree under Order 9, Rule 13, C.P.C. Learned advocate submits that therefore, by implication, there is a specific exclusion as far as this category of proceedings is concerted. He has placed considerable reliance on a decision of the Orissa High Court reported inPatnaik v. Patnaik, It is true that in paragraph 4 of the decision there is a cryptic observation to the effect that Section 12 of the Limitation Act does not cover a proceeding under Order 9, Rule 13. There is no other discussion nor are reasons set out for this observation or finding. On the basis of this ruling, it is submitted that the trial Court was fully, justified in law in having excluded the present application from those cases where delay can be condoned. This argument proceeds on the footing that even if an application for condonation of delay had been made, that it would not have been permissible for the lower Court to condone the delay.
6. With utmost respect to the Orissa High Court, I am unable to subscribe to that view for the reason that sub-section (1) of Section 12 of the Limitation Act clearly categories the three broad heads under which all legal proceedings can be classified. It may be that in common parlance a proceeding for setting aside an ex parte decree is referred to as a Miscellaneous Petition, but within the framework of law, it is nothing other than a simple application to a Court to set aside the ex parte decree. All such applications are clearly referred to in sub-section (1) and the explanation to Section 12 does very clearly state that the time period consumed for obtaining a certified copy is required to be excluded. In this view of the matter, to my mind, there can be no two opinions about the fact that the learned Judge was in error in the view of that he had taken. Furthermore, applying Section 12 to the facts of the present case, one would have to hold that excluding the 7 days' time spent for obtaining the copy of the order, that the application for setting aside the decree was filed in time. The respondent's learned advocate has also drawn my attention to a decision of the Delhi High Court reported in : AIR1992Delhi22a in the case of M/s. Bhagwan Pass Brothers v. Ghulam Ahmed Dar. That was an arbitration proceeding which had culminated in an ex parte decree being passed on the basis of the award and the only ground on which the Court refused to entertain the application filed under Order 9, Rule 13 was because no application for condonation of delay had been filed even though there was a considerable delay in that case. That decision, to my mind, has no application to the present proceedings.
7. The last question that arises is as to whether the decree in question ought to be set aside on the basis of the grounds set out in the application. I do concede that a Court should not be unduly lenient as far as the setting aside of decrees is concerned, because this is one of the areas that has contributed to a lot of unnecessary litigation. A party who is not vigilant and a party who has been duly served, would not normally qualify for a second opportunity or a second round of litigation unless there are very cogent and genuine reasons set out. I do propose to apply that test to the facts of the present case because to my mind, the laxity in setting aside orders and decrees has virtually sent litigation in circles in several instances.
8. The appellants are villagers and they are closely related to the plaintiff. Admittedly, this is a family dispute and the appellants have contended that when the suit was filed, they went to the village Panchayath to have the matter resolved. According to them, on the advise of elders, the plaintiff had agreed to withdraw the suit. These statements have been denied by the plaintiff. The question arises as to whether the versions set out by the defendants ought to be accepted or not. Having regard to the status of the defendants and the versions put forward by them, I have no hesitation in holding that the defence pleaded for non-appearance is a genuine one and deserves to be accepted/One needs to take cognizance of the situation that normally prevails in a village and the normal-course of conduct in a situation of this type and a court would be justified in holding that the defendants did, in the first instance, approach the elders in the village. If that was the case, there was every possibility that the dispute was resolved in their presence, as otherwise, there was no reason for the defendants not to appear before the Court. Under these circumstances, to my mind, on the facts of this case, sufficient cause has been shown for the non-appearance by the defendants and therefore, the ex parte decree is liable to be set aside.
9. I had occasion to refer to the aspect of laxity and I need to add here that even in those cases where a decree is set aside, the party at whose instance the loss of time has occurred would be duty bound to compensate for the waste of time particularly judicial time. Under these circumstances, the decree is set aside on condition that the present appellants pay to the respondents a sum of Rs. 500/- as costs quantified which shall be condition precedent. The costs shall be paid within a period of three weeks from today. The record, if called for, shall be sent back to the trial Court and the parties are directed to appear before the trial Court on 3-4-1995 when the Court shall take up the matter for orders. The Court shall thereafter hear the parties and dispose of the suit on merits.
10. The appeal to accordingly stand disposed of with the aforesaid directions. In the circumstances of the case, however, the appellants shall pay the respondents costs of this appeal quantified at Rs. 500/-.
11. Order accordingly.