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Madhya Pradesh High Court · body

2003 DIGILAW 676 (MP)

Gupala Dhimar v. State of M. P.

2003-05-06

S.K.PANDE

body2003
JUDGMENT Arguments heard. This revision u/s 115 CPC is directed against the order dated 20.10.1994 passed by Civil Judge Class II Orchha in MJC No. 5/91 allowing application u/O 9 Rule 13 CPC filed by respondent No.3, whereby ex-parte decree dated 27.4.1988 in C.S. No. 11-A/88 was set aside. Facts in brief are, petitioner instituted C.S. No. 11-A/88 in the Court of Civil Judge, Class II, Orchha against respondents No.1 and 2 State of M.P. and Tahsildar, Pirthvipur respectively for relief of permanent injunction in respect of the suit land measuring 8.00 acres. It was contended by respondent No.1 and 2 that an area measuring 2.5 acres out of the suit land has been allotted to respondent No.3 Purva Mathyamik Shala, Luharguan. Thereafter, respondent No. 1 and 2 remained absent and vide judgment dated 27.4.1988, the suit was decreed. Matadeen, said to be the President of the Education Committee of respondent No.3 filed an application u/O 9 Rule 13 CPC alongwith application u/s 5 Limitation Act. On these applications, the impugned order dated 20.10.1994 was passed by the Court below and the decree vide judgment dated 27.4.1988 passed ex-parte was set aside. In this revision, the contention of the petitioner is that respondent No.3 being not a party to the suit and proceeding in C.S. No. 11-A/88, at his instance, the decree passed vide judgment dated 27.4.1988 ought not to have been set aside. The application for setting aside the ex-parte decree was filed by the respondent No.3 on 6.9.1991. It was hopelessly barred by time. None appeared for respondent No. 3. From judgment dated 27.4. 1988, it is clear that respondent No. 1 and 2 have stated that an area of land measuring 2.5 acres out of the suit land has been allotted to respondent No.3. In spite of this, the petitioner failed to implead respondent No.3 as a party to the suit. In para 4 of the judgment dated 27.4.1988 in C.S. No. 11-A/88 part of statement of petitioner being dispossessed, was also discussed. The intention of the petitioner-plaintiff may be obvious to seek a decree behind the back of the respondent No.3. In any case, respondent No. 3 was not a party to the suit, therefore, at his instance, on an application u/O 9 Rule 13 CPC, ex-parte decree passed vide judgment dated 27.4.1988, could not have been set aside. The intention of the petitioner-plaintiff may be obvious to seek a decree behind the back of the respondent No.3. In any case, respondent No. 3 was not a party to the suit, therefore, at his instance, on an application u/O 9 Rule 13 CPC, ex-parte decree passed vide judgment dated 27.4.1988, could not have been set aside. Respondent No.3 is not bound by the decree passed in C.S. No. 11-A/88. In the circumstances, with the aforesaid observation, the revision is allowed. The impugned order setting aside the ex-parte decree in CS. No.11-A/88 is set aside. Parties to bear their costs. Counsel fees as per rule for certificate (whichever is less).