1. Respondents-plaintiffs suit for petitioners-defendants eviction from Shop No.1 situated at Indira Hotel, Vinayak Mishra Dharamshalla, Chand Nagar, Jammu, and recovery of Rs. 1125/- as arrears of rent @ Rs. 125/- per month, filed in May, 2000, was decreed in ex-parte, on May 28, 2005, by the 2nd Additional Munsiff, Jammu, on the strength of the evidence produced by the respondents, holding that the respondents requirement for use and occupation of the suit shop was comparatively more than that of the petitioners.

2. The petitioners had been set ex-parte in the case on October 26, 2002, when after appearing in the transferee Court of 2nd Additional Munsiff, Jammu on 19.04.2001 through their counsel Sh. Achal Sethi, they absented from the proceedings.

3. Before the transfer of the suit, the petitioners had filed their written statement to the respondents suit, in the Court of Munsiff, Sub-Registrar, Jammu, on November 07, 2001 where they had entered appearance therein for the first time on July 15, 2000.

4. Seeking setting aside of the ex-parte decree, the petitioners approached the trial Court by their application, on January 08, 2004 saying that, acting on the advice of their counsel that they were not required to appear in the case on each and every date of hearing, they did not appear in the Court. Their counsel, however, neither appeared on 26.10.2002, when they were set ex-parte nor did he appear thereafter in the case although they had remained in touch with him and his staff, enquiring about the further dates of hearing fixed in the case, when the said counsel and his staff would assure them that their case was being taken care of and they were duly represented in the Court.

5. They are stated to have gathered knowledge about the passing of the ex-parte decree on January 08, 2004 when they were informed by Police Station, Nowabad, to handover the possession of the suit shop to the respondents-plaintiffs, in pursuance to the order passed in the execution proceedings initiated by the respondents for execution of the ex-parte decree.

6. Justifying the filing of their petition within the prescribed time, from the date of their acquiring knowledge of the ex-parte decree, they had alternatively, prayed for condonation of delay, if any, saying that it was not deliberate but was because of the incorrect information that their learned counsel and his staff had been passing on to them.

7. The petitioners placed on the records, an affidavit of their counsel, when the respondents questioned the veracity of the cause shown in their application seeking setting aside of the ex-parte decree, in the absence of the affidavit of their counsel.

8. Mr. Achal Sethi, the Advocate, engaged by the petitioners for defending them in the trial Court says in his affidavit as follows:-

"1. That I was engaged as an Advocate by Kishore Kumar and Parshotam Lal defendants in the suit titled Yoginder Pal and anr. v. Kishore Kumar and Ors.pending in the Court of Sub-Registrar, Munsiff, Jammu.

2. That I appeared on behalf of the defendants in the suit and filed written statement on behalf of the defendants on 7.11.2001 and was informed by the Court that the case has been transferred to the Court of 2nd Additional Munsiff, Jammu and the Court directed the parties to appear in the transferee Court on 24.12.2001.

3. That on 24.12.2001, I appeared before the transferee Court but file had not reached there and when I enquired from the Presiding Officer, I was informed that whenever the file will reach in the Court, the parties will be issued notice of appearance. I accordingly informed the defendants that they have to appear when they receive notice. As no notice was received by me or by the defendants so I did not appear thereafter in the transferee Court on any date thereafter, what had happened in the suit, I have no knowledge of it."

9. Set down for evidence of the parties, on the issues, arising out of the petitioners application, the parties opted not to examine any one else, other than petitioner-Kishore Kumar and respondent-Joginder Pal to support their respective case, as set out in the application and objections thereto. The petitioners, did not, however, produce their Advocate to support the case set up in their application.

10. Finding that the petitioners had failed to make out any sufficient cause for their absence in appearing in the suit, the petitioners application was dismissed by the 2nd Additional Munsiff, Jammu on March 18, 2006, additionally, holding it to be barred by time.

11. The appellate Court of learned Principal District Judge too did not find any substance in the petitioners case, warranting setting aside of the ex-parte decree, and accordingly dismissed their appeal by his Order of December 06, 2007, aggrieved whereby the petitioners have invoked the Revisional jurisdiction of the Court, on the Civil side, by this Civil Revision Petition.

12. Referring to Harbans Kour v. Swaran Singh, reported as AIR 2008 (NOC) 1100 (J&K), Sunder and another v. Mst. Durgi and others, reported as 1973 JKLR, 602, M.K. Parsad v. P. Arumugam, reported as AIR 2001 SC, 2497 besides 2006 SLJ (1), 147, the petitioners learned counsel seeks setting aside of the orders passed by the Courts below saying that the petitioners can not be penalised for the default of their counsel to the extent of even depriving them of their right to contest the respondents suit seeking their eviction from the shop in question, on the ground of having become their landlords, pursuant to the arrangement of their ex-landlord transferring his rights in the property to them. Learned counsel vehemently argued that there was no intentional absence of the petitioners from the proceedings, And the delay, which may occasion, in the disposal of the suit, in the event of setting aside of the ex-parte decree, can be suitably compensated, by allowing costs to the other side. According to the learned counsel, in view of the affidavit of the petitioners counsel that he had not appeared before the transferee Court, the ex-parte decree passed in the case was liable to be set aside as it had been passed without issuing fresh notice to the petitioners after the transfer of the suit from the Court of Munsiff, Sub-Registrar, Jammu to the file of 2nd Additional, Munsiff, Jammu, to which they were entitled under law.

13. Defending the orders impugned in this petition, the respondents learned counsel submitted that the petitioners had deliberately absented from the suit to protract the litigation, and their intention was writ large from a bare reading of paragraph No. 7 of their application, and that the case set up by the petitioners for setting aside the ex-parte decree had not been substantiated, in that, the evidence led in support of the plea projected in their application, was diametrically divergent, And in this view of the matter, the petitioners application may not warrant consideration, additionally because it was, otherwise barred by the law of limitation prescribing thirty days time, for setting aside an ex-parte decree, from the date of the decree. Learned counsel refers to K. Ayya Thayalnayagiammal v. T.V. Thomas, reported as AIR 2000 SC, 3462, P.K. Ramchandran v. State of Kerala and another, reported as AIR 1998 SC, 2276, Sudha Devi v. M.P.Narayanan, reported as 1988 (3) SCC, 366 and Sunil Poddar & Ors. v. Union Bank of India, reported as 2008 (1) Civil Court Cases, 696 (S.C.), to support his submissions.

14. I have considered the submissions and the case law cited by learned counsel for the parties.

15. The petitioners counsels submission that Mr. Achal Sethis affidavit deserves consideration because its filing had not been objected to by the respondents and even otherwise, there was no impediment for its reception in evidence, though supported by Sunders case (supra) of this Court, may not be acceptable, in view of the explicit provisions of Order XIX of the Code of Civil Procedure which permit reception of affidavit, by way of evidence, only if the Court, decides for sufficient reason, to get any particular fact or facts proved by affidavit. In this case, the Court had not passed any such order requiring the parties to prove the issues arising out of the petitioners application, by affidavit evidence. At this stage, it would be profitable to refer to the provisions of Order XIX of the Code of Civil Procedure which is reproduced hereunder:-

"Order XIX:

1. Power to order any point to be proved by affidavit-

Any court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. Power to order attendance of deponent for cross-examination-

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs."

16. Filing of Advocates affidavit by the petitioners, without there being any consideration by the Court, as to whether or not the fact of petitioners absence required its proof or otherwise by affidavit, would not make the affidavit, as evidence in the case, when in terms of the order, passed on 05.04.2004, the Court had specifically directed the petitioners to produce their evidence in support of their application.

17. The order passed by the Court on 05.04.2004, therefore, clearly demonstrates that the Court had desired the parties to produce their evidence in the Court rather than permitting them to lead evidence by affidavits.

18. In this view of the matter, the petitioners plea that filing of their Advocates affidavit, having not been objected to by the respondents, would warrant consideration of the facts stated therein, is found untenable, being contrary to the mandate of Order XIX of the Code of Civil Procedure. The petitioners having opted not to produce their Advocate as their witness in the case, the counsels affidavit may not thus warrant consideration.

19. I am supported in taking this view by Sudha Devis case relied upon by the respondents counsel, where while dealing with a similar issue, their Lordships of the Honble Supreme Court of India observed as follows:-

"Besides affidavits are not included in the definition of evidence, in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason, Court passes an order under Order 19 Rule 1 or 2 of the Code of Civil Procedure."

20. Coming to the next question as to whether or not sufficient cause had been made out by the petitioners warranting setting aside of the ex-parte decree, it needs to be noticed that petitioner-Kishore Kumars statement, made in support of the application, projects a story, different from the one which the petitioners had indicated in their application. They have stated in the application that they had not appeared in the case, in view of the advice of their counsel that their presence was not needed in the Court and that he would be appearing in the case on their behalf, which he, however, never did as a result whereof they were set ex-parte on October 26, 2002.

21. As against this, the stand taken by Kishore Kumar-petitioner, in his statement, is that he was aware about the transfer of the suit from the file of Munsiff, Sub-Registrar, Jammu to the transferee Court and his counsel had informed that a fresh summons would be issued by the Court because the file had not reached in the transferee Court on the date notified by Munsiff, Sub-Registrar, Jammu for the purpose. The statement further indicates that the counsel had told him that as and when the notice was served upon the petitioners, they should contact him and in case the notice was served upon the Advocate, he would accordingly inform them. The Advocate is however, stated not to have informed the petitioners about the dates fixed in the case and his absence was thus not intentional.

22. Perusal of the records of the 2nd Additional Munsiff, however, indicates otherwise. After remaining absent in the transferee Court on four dates of hearing, after its transfer from the file of Munsiff, Sub-Registrar, Jammu, the Advocates of both the parties are recorded to have appeared in the case on 01.08.2002 when time, sought for the production of documents in the case, was allowed to them.

23. In view of the above interim order of the transferee Court, it becomes difficult to accept the case projected by Kishore Kumar-petitioner in his statement that the petitioners were unaware of the proceedings in the transferee Court particularly when the interim order aforementioned passed by the transferee Court records the petitioners Advocate to have appeared along with the respondents Advocate in the Court on August 01, 2002 seeking time for the production of documents on behalf of their respective clients, in the case.

24. Perusal of the petitioners application, moved for setting aside the ex-parte decree, indicates it to have been so moved after going through the minutes of the proceedings recorded by the transferee Court. In paragraph No. 4 of the application, it is stated that the petitioners counsel was present in the Court, but had chosen to remain absent, resulting in initiation of ex-parte proceedings against the petitioners on 26.10.2002.

25. In view of the case set up by the petitioners in their application, it is thus apparent that they were aware about the presence of their Advocate in the transferee Court on August 01, 2002 whereafter, because of his absence, the petitioners had been set ex-parte. In the absence of any explanation for non-appearance of the petitioners in the transferee Court after the appearance of their counsel on August 01, 2002, the statement made by petitioner No.1 that he was not aware about the proceedings in the transferee Court, cannot be believed. The petitioners Advocates affidavit, being in-admissible in evidence, for the reasons mentioned elsewhere in this judgment, cannot even otherwise be considered for its acceptance, in view of the presence of petitioners Advocate recorded as such, in the minutes of the proceedings on August 01, 2002, carrying a presumption of correctness, which has not been rebutted in the present case by evidence of any type whatsoever, by the petitioners.

26. Petitioners plea that they were entitled to a fresh notice by the transferee Court too is found untenable, in that, after having appeared in the Court of Munsiff, Sub-Registrar, Jammu, and known about the transfer of the case to the file of 2nd Additional Munsiff, Jammu, it was their duty to have known about the proceedings in the transferee Court and their omission to appear in the transferee Court, even if one were to believe that they were not aware about the proceedings in the transferee Court, in the absence of any fresh notice to them, cannot be taken as sufficient cause for their absence in the Court.

27. I am supported in taking this view by Sunil Podders case, referred by the respondents learned counsel, where while dealing with a similar issue, the Honble Supreme Court of India, held as follows:-

"In our opinion, the Tribunals were also right in commenting on the conduct of the appellants/defendants that they were appearing before Civil Court through an advocate, had filed written statement as also applications requesting the Court to treat and try certain issues as preliminary issues. All those facts were material facts. It was, therefore, incumbent upon the appellants to disclose such facts in an application under Section 22(2)(g) of thewhen they requested the DRT to set aside ex parte order passed against them. The appellants deliberately and intentionally concealed those facts. There was no whisper in the said application indicating that before the Civil Court they were present and were also represented by an advocate. An impression was sought to be created by the defendants/appellants as if for the first time they came to known in December, 2000 that an ex parte order had been passed against them and immediately thereafter they had approached the DRT. The Debt Recovery Tribunal, Jabalpur, therefore, in our opinion was right in dismissing the said application. In an appeal against the said order, the DRAT observed that the appellants had willfully suppressed the fact that they were not in the know of the proceedings when the same was proceeding in the Civil Court. The DRAT correctly stated that even if it is taken to be true that the appellants did not receive notice from the DRT, it was their duty to make necessary inquiry in the proceedings when the case had been transferred to the DRT. The Appellate Tribunal rightly concluded,

"In the present case, the appellants very artistically have suppressed the fact of their filing of written statement in the case while it was proceeding in the Civil Court and were being represented by their lawyer till the date of its transfer to the Tribunal at Jabalpur."

21. The High Court, in our judgment, was equally right in dismissing the petition confirming the finding of the DRAT that the appellant had artistically suppressed material fact and no interference was called for."

28. The case projected by the petitioners for setting aside the ex-parte decree, in view of the above discussion, is thus found to be without merit.

29. That apart, after having been duly served in the respondents suit, and known about the transfer of the suit to the file of the 2nd Additional, Munsiff, Jammu, the petitioners were entitled to seek setting aside of the ex-parte decree, only if they had approached the Court within a period of thirty days from the date of the decree, the time prescribed in this behalf by Article 164 of the Jammu and Kashmir Limitation Act, Svt. 1995 (1938 A.D), which in terms of the Article begins to run from the date of the decree or, where the summons was not duly served, when the applicant gets knowledge of the decree, and that too, on satisfying the Court that there was sufficient cause which had prevented them from appearing in the Court, which the petitioners have, however, failed to prove.

30. Application moved by the petitioners beyond the prescribed period of thirty days and that too without any justifiable reason or sufficient cause was thus barred by time hence non-maintainable.

31. Coming to the petitioners next plea, that setting aside of the ex-parte decree, on payment of costs to the other side would satisfy the interests of justice, and compensate the other side for the delay which may occasion in the fresh trial of the Suit, suffice would it be to say that the petitioners have not come forward with clean hands and had fabricated a false plea in a bid to explain their absence from the transferee Court. Even otherwise, setting aside of the ex-parte decree, obtained by the respondents for satisfying their personal necessity to occupy the shop in question, may not be in the interests of justice, as such a course was likely to delay further the consideration of their case afresh for the occupation of the shop in question, when they are already in litigation in the Courts for the last more than 9 years, of course, a long period in seeking adjudication of a question as to whether or not they were entitled to seek the possession of the shop on the ground of their personal necessity.

32. That apart, those seeking equitable discretionary relief, are required to approach the Court with clean hands. A litigants approach to the Court with untrue facts, designed to mislead the Court on the basis of untrue facts, may deprive him to seek compassion, which is reserved for truthful and bonafide litigants.

33. For all what has been said above, I do not find any ground to interfere with the orders passed by the Courts below, which have discussed the petitioners case in detail before recording their findings on facts that the petitioners application for setting aside the ex-parte decree was unjustified. The orders impugned in the petition have not caused any failure of justice nor are found to be suffering from any error of law or jurisdiction, warranting interference in revision.

34. Thus, found to be without merit, this Revision Petition is, accordingly, dismissed.