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This Misc. Appeal has been filed under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 being aggrieved by order dated 03/10/2018 and 04/10/2018 passed by District Judge, Chhatarpur (M.P.) in MJC No. 31/2016, whereby learned trial Court has dismissed the application filed under Section 5 of Limitation Act for condonation of delay in filing of the application under Order 9 Rule 13 of CPC for setting aside ex-parte judgment and decree dated 21/07/2005 passed in Civil Suit No. 13-A/2003 and also dismissed the application filed under Order 9 Rule 13 of the CPC as barred by limitation. 2. Brief facts of the case are that a civil suit No. 13-A/2003 was filed by plaintiffs/respondent Nos. 1 to 4 before the trial Court for declaration of title of 1/5th -1/5th share of each plaintiffs and partition of suit land as mentioned in para No.3 of the plaint (Annexure A/1) and also for declaration of sale-deed dated 27/10/1995 executed by Defendant Nos. 1 to 3/respondent Nos. 5 to 7 in favour of Mridul Brahman(defendant No.6)- husband of appellant No.1 and father of appellant Nos. 2 to 4 and mutation order as declared null and void and ineffective as against the interest of the plaintiffs. Notices were issued to defendants, but none appeared on the date of hearing i.e. 24/03/2005 on behalf of defendant Nos. 1 to 3 and 6 and 7, hence, trial Court proceeded ex-parte against them and fixed the case for filing of written statement on behalf of defendant Nos. 4 and 5. On the next date defendant Nos. 4 and 5 filed their written statement and admitted the pleadings in plaint in toto and claimed their share in suit property, though they have not filed any counter-claim in accordance with law. 3. After framing of the issues and recording of the evidence as adduced by the plaintiffs, trial Court has passed the impugnedjudgment and decree dated 21/07/2005 in favour of the plaintiffs/respondent Nos. 1 to 4. 4. Later on, on 25/11/2010, ancestors of appellants i.e. Mridul Brahman (defendant No.6) has filed an application under Order 9 Rule 13 of CPC (Annexure A-3) before the trial Court for setting aside the ex-parte judgment and decree dated 21/07/2005 (Annexure A-2) alongwith an application under Section 5 of the Limitation Act (Annexure A-4) for delay in filing of the application. It is pleaded in the application that notice of civil suit was never served on defendant No.6 (Mridul Brahman) and prior to year 2003, he was not residing at Chhatarpur (M.P.) but used to live in Bajrang Colony, Banda (U.P.) and currently he resides at Village Udina, Tehsil Noor, District Mevat (Harayana) and works as teacher in Kalyan Secondary School located at Village Udina, Tehsil Noor, District Mevat (Harayana). It is also pleaded that he had appointed Ramkhilawan Mishra as power of attorney to look after the land, which he had been purchased through sale-deed dated 27/10/1995 from the defendant Nos. 1 to 3. On 18/11/2010, when power of attorney holder Ramkhilawan Mishra went to the spot to show the land to other people for the purpose of selling it, then Badri Prasad Tiwari (non-applicant No. 5 in MJC No. 31/2016 and respondent No.5 in this appeal) told Ramkhilawan Mishra that the sale-deed executed in favour of Mridul Brahman (defendant No.6) has been cancelled by the trial Court vide judgment and decree dated 27/10/1995, then he got the knowledge of the impugned judgment and decree. Thereafter, he applied and obtained the certified copy of the impugned judgment and decree passed in the Civil Suit No. 13- A/2003 on 24/11/2010 and filed an application for setting aside ex- parte judgment and decree alongwith an application filed underSection 5 of the Limitation Act for condonation of delay in filing of the said application stating that he deliberately did not cause any delay in filing of the application. 5. Respondents were summoned and served in MJC No. 31/2016 except non-applicant No.6 (respondent No.6 in this appeal), however, as none-appeared before the trial Court, therefore, the trial Court proceeded against them ex-parte. Respondent No.6 has filed the reply of the application and denied the averments and prayed for dismissal of the application for condonation of delay as well as dismissal of the application filed under Order 9 Rule 13 of the CPC. Appellants as well as respondent No.6 have not adduced any evidence before the trial Court to prove their averments pleaded in MJC No. 31/2016. Though, appellant No.1-Smt. Shashi has filed her chief examination on affidavit under Order 18 Rule 4 of CPC in support of her pleadings but she did not appear before the trial Court for recording her cross-examination, hence, contents of the affidavit are not available for consideration. 6. After considering the arguments of learned counsel for the parties appeared in the case, learned trial Court has passed the impugned order and dismissed the application filed under Section 5 of the Limitation Act for condonation of delay in filing of the application under Order 9 Rule 13 of CPC as time barred. Being aggrieved with the impugned order, this appeal has been filed. 7. Learned counsel for appellants has submitted that since notice of civil suit No.13-A/2003 has not been served to Mridul Bramhan (Defendant No.6 in civil suit), therefore, he could not appear in the proceedings of civil suit and on 18/11/2010, when he received the information from power of Attorney holder regarding ex-parte decree, then he immediately applied for certified copy of ex-partejudgment and decree and filed the application under Order 9 Rule 13 of CPC on 25/11/2010, which clearly indicates that the application is well within limitation from the date of knowledge. It is also submitted that learned court below failed to appreciate the fact that in back portion of notice dated 15/03/2005, it is mentioned that Mridum Bramhan has refused to take notice and witnesses also refused to sign in the notice, but learned trial Court has not adopted any other mode as provided under Order 5 Rule 20 of CPC for service of notice on Mridul Bramhan, therefore, the service of notice on Mridul Bramhan seems to be doubtful. Once, the appellant No.1 has already submitted her examination in chief therefore, there is no reason arises for not adducing her evidence before the trial Court, but the counsel for the appellants has wrongly made statement before the trial Court that the appellants do not want to adduce their evidence. It is well settled law that due to mistake of counsel, parties should not suffer. It is also submitted that appellant has mentioned sufficient and bonafide reasons for his non-appearance in the civil suit on the date of hearing but learned trial Court has failed to consider the same in proper perspective. Hence, impugned order is liable to be set aside. In support of his contentions, learned counsel for appellants has placed reliance on the judgment of Hon’ble Apex Court in the case of Balwant Singh (Dead) Vs. Jagdish Singh & Ors. AIR 2010 SCC 3043, Seho Raj Singh (Deceased) Through LRS & Ors. Vs. Union of India andAnother, decided on 09/10/2023 in Civil Appeal No. 5867 of 2015and the order dated 11/03/2024 passed by this Court in Second Appeal No. 1392/2020 (Ratiya Singh & Ors. Vs. Chaitu Singh & Others).