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2010 DIGILAW 392 (JHR)

Devi Dayal Raut v. Kamla Devi

2010-03-30

D.G.R.PATNAIK

body2010
JUDGMENT By Court.-It appears that despite service of notice upon the Respondent Nos. 1 and 2 and even after their appearance although on the date before the last, when neither of the Respondents nor their lawyer appeared on call on the last date i.e. on 11.2.2010, this case was posted for today for hearing and the Respondents/their lawyer were directed to appear and submit arguments of their own desire against the reconciliation. Today, also on repeated calls, neither the Respondents nor their lawyer has appeared, though learned counsel for the petitioner is present. 2. Under the circumstances, this writ application is taken up for hearing ex parte against the Respondent Nos. 1 and 2. 3. The petitioner, in this writ application, has prayed for quashing the order dated 19.3.2004, passed in Title Suit No. 67 of 1995, whereby the petitioner's/plaintiff's prayer for not allowing the Respondent No.2 to contest the suit on the ground that the suit was contested by the father of the Respondent Nos. 1 and 2 and was decreed in terms of the compromise effected between the petitioner/plaintiff and the defendant-father of the Respondent Nos. 1 and 2, was dismissed and the trial court has allowed the Respondent Nos. 1 and 2 to contest the suit. 4. The facts of the petitioner's case in brief are as follows:- The petitioner as plaintiff, filed a Title Suit No. 67 of 1995 against two persons, namely, Kamla Devi as defendant No. 1 and one Hare Krishna Choudhary as the defendant No.2, for declaration of his title and recovery of possession of the suit property. In the suit, while both the defendants had appeared but the defendant No.2, namely, Hare Krishna Choudhary did not offer any contest. In fact, the defendant No. 2 died during the pendency of the trial and upon his death, his two sons and one daughter, who are the Respondents, in this writ application, were substituted. Later, while the substituted defendants did not appear nor offer any contest, the defendant No. 1 continued to appear and the suit was decreed on the basis of a compromise effected between the plaintiff, namely, the present petitioner and the defendant No.1, Durga Dayal Rai. The decree was apparently passed ex parte against the substituted legal representatives of the defendant No.2, late Hare Krishna Choudhary. The decree was apparently passed ex parte against the substituted legal representatives of the defendant No.2, late Hare Krishna Choudhary. It appears that being aggrieved by the ex parte decree passed against them, the substituted legal representatives of the deceased-Respondent No. 2 filed a Miscellaneous application for restoration of the suit under Order IX Rule 13 of the Code of Civil Procedure. The trial court having refused to allow their prayer, the aggrieved parties preferred a Miscellaneous Appeal before the Appellate Court. The Appellate Court, in its turn, after considering the submissions of the counsel, allowed the appeal by setting aside the order passed by the Appellate Court in the Miscellaneous Application under Order IX Rule 13 of the C.P.C. and directed for restoration of the suit in favour of the appellants, namely, the substituted legal representatives of the Respondent No.2. Upon such restoration, while the legal representatives of the substituted defendant No. 2 availed opportunity to file their written statements and to offer their contest as defendants in the suit, the legal heirs of the defendant No.1, Durga Dayal Rai had also wanted to offer contest to the suit, which was objected to by the petitioner/plaintiff. The petition filed by the petitioner was rejected by the trial court on the ground that the suit having been restored, such restoration operates also in favour of the heirs of the defendant No.1. The trial court's impugned order in the aforesaid context, has been assailed by the petitioner on the ground that it is thoroughly misconceived, illegal and not in consonance with the provisions of law. 5. Mr. B.K. Dubey, learned counsel for the petitioner would argue that in pursuance to the terms of compromise and the decree passed by the trial court, certain benefits had accrued to the plaintiff/petitioner. The decree as passed on compromise, has never been challenged by any of the surviving legal heirs of the defendant No.1, Durga Dayal Rai and the same was, therefore, binding upon the legal heirs of the deceased-defendant No.1, Durga Dayal Rai. The decree as passed on compromise, has never been challenged by any of the surviving legal heirs of the defendant No.1, Durga Dayal Rai and the same was, therefore, binding upon the legal heirs of the deceased-defendant No.1, Durga Dayal Rai. Learned counsel argues that in view of the aforesaid facts, allowing the legal heirs of the deceased-defendant No.1 to contest the suit all over again is against the principle of law under the Civil Procedure Code and the impugned order appears to have been passed by the trial court on the presumption that the order of restoration of the suit as passed by the Appellate Court implies that the suit has been restored in order to enable the entire set of defendants to contest the suit. 6. From perusal of the documents on record, it appears that though the present Respondents being the substituted legal heirs of the original defendants in the suit, who had filed their application under Order IX Rule 13 of the C.P.C. for setting aside the ex parte decree and for restoration of the suit to enable to contest the same, neither any objection was taken in respect of the compromise decree, which was passed in favour of the defendant No. 1 nor did the Respondents choose to implead the defendant No. 1 or his legal representatives either in the Miscellaneous Application preferred by them under Order IX Rule 13 of the C.P .C. before the trial court or in the Miscellaneous Appeal filed by them before the Appellate Court against the order of rejection, passed by the trial court. It also appears that the decree passed on the basis of the compromise effected between the plaintiff/petitioner and the defendant No.1, Durga Dayal Rai has remained final in absence of any challenge from any corner. Learned counsel for the petitioner rightly argues that the benefits of the compromise decree, which have accrued to him as plaintiff in the suit, cannot be denied to him. The trial court cannot deny the benefits of the decree, which had accrued to the petitioner/plaintiff arbitrarily by allowing the legal representatives of the deceased-defendant No. 1 to contest the suit all over again. The trial court cannot deny the benefits of the decree, which had accrued to the petitioner/plaintiff arbitrarily by allowing the legal representatives of the deceased-defendant No. 1 to contest the suit all over again. It also appears from the judgment and decree passed by the trial court in the aforesaid Title Suit, that the suit was decreed in part, the terms of the compromise, forming part of the original decree against the defendant No. 1 and ex parte against the rest of the defendants. It is apparent, therefore, that the decree passed on compromise in favour of the plaintiff and against the defendant No. 1 has remained final. As long as the decree is not set aside, on the basis of any plea raised by the legal representatives of the defendant No. 1 on the ground that it was a collusive decree or on any such other ground, the plaintiff cannot be denied the benefits of such decree, which he has acquired against the defendant No. 1 and his legal heirs and representatives. Allowing the legal heirs and representatives of the defendant No. 1 to contest the suit would obviously involve reopening of the suit against the defendant No. 1 all over again. The order of the Appellate Court, passed in the Miscellaneous Appeal for setting aside the ex parte decree passed against the legal representatives of the deceased-defendant No.2 and restoration of the suit to enable them to contest the same, would not imply therefore, that the restoration would ipso facto permit the surviving legal heirs and representatives of the defendant No. 1 to contest the suit all over again. 7. In the light of the above facts and circumstances, I am of the opinion that the impugned order suffers from impropriety and cannot be sustained. Under the circumstances, the impugned order dated19.3.2004, passed in Title Suit No. 67 of 1995 is hereby set aside. This writ application is allowed, accordingly.