Research › Browse › Judgment

Allahabad High Court · body

1986 DIGILAW 411 (ALL)

Madan Pal v. U. P. State

1986-07-02

P.SINGH

body1986
JUDGMENT P. Singh, Member - This recommendation has been made by the learned Additional Commissioner, Meerut Division, Meerut vide his order dated 8-7-1985 for setting aside the trial court's order dated 3-4-1975. 2. I have heard the learned counsel for the parties and have perused the record. 3. It appears that the learned A.S.D.O., Roorkee, district Saharanpur, allowed the restoration application in suit No. 171 under Section 229-B of U.P.Z.A. & L.R. Act setting aside the ex parte-decree in respect of the land situated in village Dadli, pergaua Bhagwanpur, tehsil Roorkee, district Saharanpur. 4. It appears that the ex-parte decree which was set aside by the learned lower court was dated 28-12-1966. The application was moved on 8-1-1978 i.e., after 8 years. The learned lower court has exercised its power under Section 151 C.P.C. reads as under : - "Nothing in this code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." From the perusal of section it is evident that inherent power provided by the provision of Section 151 C.P.C. can be exercised for meeting the ends of justice or for preventing the abuse of the process of court. In the instant case the provisions contained in order 9 rules 13 and 14 C.P.C., relate to setting aside the ex parte-decree against the defendant. In the instant case the provisions contained in order 9 rules 13 and 14 C.P.C., relate to setting aside the ex parte-decree against the defendant. The order 9 Rules 13 and 14 C.P.C. reads as under :- Rule 13-"In any case in which a decree is passed ex-parte against the defendant, he may apply to the court by which the decree was passed for an order to set it aside, and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of other defendants also : Provided further that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Rule 14-"No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party." 5. In view of the above, I find that the orders passed by the trial court were not justifiable in accordance with the provision of Section 151 C.P.C. Because by taking recourse to the provision of that section, the trial court abused the process of law whereas it should have prevented the abuse of the process of law. I find that the restoration application should have been dealt with after issuing notices to the parties and thereafter it should have been decided by the trial court. Objection filed on behalf of the State of U.P. is not sustainable in the eye of law as the provisions contained under Section 151 C.P.C. were not attracted to the instant proceeding. I do not find any illegality in the order passed by the learned Additional Commissioner. Consequently, I allow the revision, set aside the order dated 3-4-1975 passed by the trial court.