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2012 DIGILAW 121 (JHR)

Philip Kharia v. Kamil Kharia

2012-01-23

POONAM SRIVASTAV

body2012
JUDGMENT Heard the counsel appearing on behalf of the revisionists. 2. The instant revision is preferred challenging the order dated 16.06.2010 in Miscellaneous Case No. 15 of 2007 passed by Munsif, Gumla arising out of Title Suit No. 50 of 2002 allowing the application under Order 9 Rule 13 C.P.C. setting aside the exparte judgment and decree dated 10.09.2004 and 20.09.2004 respectively on a cost of Rs. 2,500/. 3. That one Title Suit No. 50 of 2002 was instituted by the petitioner for declaration of right, title and interest over the land in question situated at village Karichuwa, P.S.Kamdara and also for declaring adoption executed, vide deed dated 18.06.1971 by Johan Naro in favour of one Kamil Khariaopposite party. According to the petitioners, the respondent failed to appear despite notice. On refusal of the notice, the matter proceeded exparte. Only Performa defendant no. 3 appeared and filed his written statement and the matter was finally decided, vide judgment and decree dated 10.09.2004 and 20.09.2004 respectively. The Miscellaneous Case No. 15 of 2007 was instituted with the prayer to set aside the exparte judgment and decree on 13.08.2007 (A copy of the application is annexed as Annexure1 to the writ petition). The petitioners contested the application under Order 9 Rule 13 C.P.C. and filed his objection vide Annexure2 to the writ petition. The Deputy Commissioner, Performa opposite party was also arrayed in the miscellaneous case and show cause was filed on behalf of the Deputy Commissioner as well. The petitioners' contention was supported by the Deputy Commissioner and the assertion on behalf of the objectors was that the respondent defendant deliberately failed to make his appearance and the miscellaneous case was instituted after a long lapse of three years and, therefore, cannot be allowed. Besides, submission is that the respondent has admitted that he has received notice and, therefore, he cannot be permitted to retract his statement before the court, from the assertion made in his application. Summons were duly served, but the respondent defendant deliberately did not appear. The Deputy Commissioner also filed his objection that the restoration application is not maintainable after a long lapse of time and thus, the application under Order 9 Rule 13 C.P.C. was contested tooth and nail. The court below allowed the application on a cost of Rs. 2,500/by a lengthy well reasoned order. 4. The Deputy Commissioner also filed his objection that the restoration application is not maintainable after a long lapse of time and thus, the application under Order 9 Rule 13 C.P.C. was contested tooth and nail. The court below allowed the application on a cost of Rs. 2,500/by a lengthy well reasoned order. 4. Counsel appearing on behalf of the petitioners also cited a decision of the Apex Court in the case of Mahabir Singh Vs. Subhash in Civil Appeal No. 4881 of 2007 judgment dated 12.10.2007. In the said case, the Apex Court concluded that the applicant who approached the court under Order 9 Rule 13 C.P.C. had acquired knowledge one and half year before passing of exparte decree and the operation starts from the date of knowledge of decree and, therefore, treated the application to be time barred. 5. I am of the opinion that the facts of the said case are different from the instant one where the court had come to a conclusion that the date of knowledge of the respondent about the exparte judgment and decree passed by SubJudge, Gumla was 30.07.2007. No summons were served on him though a L.T.I. has been affixed to denote that summons were served, but the name of witnesses whose L.T.I. endorsed on the summons did not mention parentage, is also not there. The service report also pointed out that someone has given his name under the alias without giving details of his parentage or residence. The entire order sheet was examined and the oral evidence as well as documentary evidence were also taken into consideration before the application under Order 9 Rule 13 C.P.C. was allowed. Evidently, cost was also imposed. 6. After hearing the counsel for the petitioners at length and going through the impugned order, I am of the considered opinion that the learned Sub-Judge, Gumla has scrutinized the evidence such as oral evidence as well as the order sheet and the various documents brought on record in support of the contention of the contesting respondent. The discretion to set aside the exparte judgment and decree passed by Sub-Judge, Gumla, has been exercised judiciously and fairly. The discretion to set aside the exparte judgment and decree passed by Sub-Judge, Gumla, has been exercised judiciously and fairly. The Sub-Judge, Gumla was of the view that the application to recall judgment and decree was within time from the date the respondent defendant acquired knowledge and, therefore, I do not think there is any error apparent on the face of record or manifestly erroneous which impels exercise of jurisdiction under Article 226 of the Constitution of India. No good ground for interference is made out. The writ petition lacks merit and it is accordingly dismissed. 7. However, this is an appropriate case where the trial court should exercise diligence to decide the suit expeditiously without granting undue adjournments as already much time has been caused.