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2008 DIGILAW 443 (ORI)

GAJENDRA KUMAR NAIK v. DURJA NAIK

2008-06-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this civil revision, challenge has been made to the Order Dated 29.8.2007 passed by the Learned Civil Judge (Senior Division), Titilagarh in MJC No. 16 of 2003 wherein he has set aside the Judgment and decree dated 30.9.2002 passed by him in T.S. No. 61 of 2001. 2. The facts of the case are as follows; The Petitioner as the Plaintiff filed title Suit No. 61 of 2001 before the Learned Civil Judge (Senior Division), Titilagarh for declaration of his right, title and interest and confirmation of possession over the disputed land and with an alternative prayer for recovery of possession, if the Petitioner is found to be dispossessed from the suit land in the meantime. He also prayed for permanent injunction against the Defendants restraining them from entering into the suit land and creating arty disturbance in the peaceful possession of the Plaintiff over the same. Defendants are the members of a joint family. Defendant No. 1 is the father, Defendant No. 2 is the mother and Defendant Nos. 3 and 5 are sons of Defendant No. 1. Defendants 4 and 6 are the wives of Defendants 3 and 5 respectively. 3. After receiving notice, Defendants 1 to 4 appeared through their Counsel. Though notice was issued to Defendants 5 and 6 through Court as well as by registered post, they did not appear. As the postal A.D did not return from the said Defendants after service on notice, on 7.5.2002 the Learned Civil Judge passed an order that since the postal A.D. had not returned after lapse of one month, the postal service was treated as sufficient against Defendants 5 and 6 who are husband and wife and they were set ex parte due to their non-appearance on the date fixed. Defendant No. 1 sold the disputed land to the Plaintiff by a registered sale deed. He contested the suit. The other Defendants were set ex parte due to non-appearance on the date fixed. On 16.9.2002, the Learned Civil Judge passed the ex parte decree restraining the Defendants from entering into the suit land and creating any disturbance in the peaceful possession of the Plaintiff over the same. Thereafter, Defendants 5 and 6 filed MJC No. 16 of 2003 under Order 9, Rule 13 of the CPC to set aside the ex parte decree and contest the suit. Thereafter, Defendants 5 and 6 filed MJC No. 16 of 2003 under Order 9, Rule 13 of the CPC to set aside the ex parte decree and contest the suit. Their main plea was that notice of the suit was not served on them and the postal service was not received by them as they are staying at Bombay which is known to the Plaintiff and the Plaintiff has given a wrong address in the plaint to mislead the Court. When they came to their village on 15.6.2003, they came to know about the ex parte decree on 27.6.2003 and filed the petition to set aside the said ex parte decree along with an application u/s 5 of the Limitation Act for condonation of delay. The Plaintiff after receiving the notice of the aforesaid restoration petition, filed his objection by denying the fact of non-service of notice in view of Order 5, Rule 19-A of the CPC. His main contention in the objection was that Defendants 5 and 6 are staying in village, not at Bombay. Though they were well aware of the pendency of the suit, they did not receive the notice in order to delay the suit. He further contended in the objection that from the date of the purchase he was in possession of the suit land and Defendants were not in possession of the suit land. In the MJC, Defendants 5 and 6 examined Defendant No. 5 as P.W.1 and the Plaintiff examined himself as OPW 1 and one of the co-villagers, namely, Purusottam Bhoi, as OPW 2. The co-villager has clearly stated in his deposition that Defendant No. 5 and his father Defendant No. 1, the present Opposite Party No. 3, are residing jointly in village Babaduki and that they are joint in mess and property and Defendant No. 5 along with his family was not staying at Bombay. Apart from that, though Defendants 1 to 4 appeared through their Counsel, they did not prefer to contest the suit and have accepted the ex parte decree. Therefore, the decree was confirmed against those Defendants ex parte. The decree passed by the Court below is not divisible. As the order passed by the Trial Court against Defendants 1 to 4 was confirmed, the same need not be set aside at the behest of Defendants 5 and 6. Therefore, the decree was confirmed against those Defendants ex parte. The decree passed by the Court below is not divisible. As the order passed by the Trial Court against Defendants 1 to 4 was confirmed, the same need not be set aside at the behest of Defendants 5 and 6. However, the Trial Court set aside the ex parte decree by awarding a cost of Rs. 500. 4. The Learned Counsel appearing for the Petitioner submits that the Trial Court has not taken into consideration the effect of non-divisibility of the ex parte decree in its proper perspective. He submits that Defendants 5 and 6 came to know about the ex parte decree on 27.6.2003 and they filed the MJC within one month from the date of their knowledge i.e. on 11.7.2003. As the notice on the said Defendants were sufficient and the other Defendants did not choose to take steps to set aside the ex part]e decree, the order passed by the Trial Court setting aside the ex parte decree was non est in the eye of law. He further submits that the Trial Court has illegally set aside the ex parte decree without considering the fact of non-divisibility of the decree, and there was also no sufficient cause to set aside the same. The Learned Counsel appearing for the Petitioner has cited a decision of the Supreme Court in the case of Mahabir Singh v. Subhash and Ors. reported in AIR 2007 SCW 6733 where an application under Order 9, Rule 13 of the CPC was filed one and half year after the Defendant came to know about passing of the ex parte decree and the Apex Court has held that when an ex parte decree was passed, Defendant for getting it set aside was required to establish that either no summon was served on him or he had sufficient cause for remaining absent on the date fixed for hearing of the suit ex parte. As per Article 123 of the Limitation Act, 1963, the time for filing of such application is thirty days and the applicant has to establish as to when he came to know about the ex parte decree and the period of limitation would be reckoned from that date. In the present case, admittedly the Defendants 5 and 6 are staying along with Defendants 1 to 4 in joint mess and residence. In the present case, admittedly the Defendants 5 and 6 are staying along with Defendants 1 to 4 in joint mess and residence. Merely because of the fact that the other Defendants 1 to 4 did not choose to contest the suit and have accepted the ex parte decree, Defendants 5 and 6 filed the application to set aside the ex parte decree and even if the decree is set aside, it cannot be divisible so far as the other Defendants are concerned. The Court below has not taken into consideration the aforesaid aspect of the case. By allowing the Defendants 5 and 6 to contest the suit, it will be a futile exercise and also an abuse of the process of Court. Therefore, considering the above facts and circumstances of the case, this Court in exercise of its revisional jurisdiction u/s 115 of the CPC sets aside the impugned Order Dated 29.8.2007 passed by the Learned Civil Judge (Senior Division), Titilagarh in MJC No. 16 of 2003. In the result, the revision is allowed. No costs. Final Result : Allowed