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2014 DIGILAW 101 (PAT)

Jagdish Pd. Singh v. Sheo Bachan Singh

2014-01-21

AMARESH KUMAR LAL

body2014
ORDER I.A. No.7954/2012 has been filed under Section 5 of the Limitation Act to condone the delay in filing the appeal. 2. Heard the learned counsel for the appellant and the learned counsel for respondent nos. 1 to 7. 3. The respondent nos. 8 to 10 have not appeared even after service of notice. 4. It is submitted that due to illness of appellant and also non-availability of his learned counsel, there has been delay in filing the appeal. 5. The learned counsel for the respondent nos. 1 to 7 has submitted that it appears from the limitation petition that the appellant has fell ill twice but he has not filed any certificate of the doctor to show his illness. 6. Considering the facts and circumstances, it appears that the delay has not been properly explained but in the interest of justice, the delay in filing of the appeal is condoned at a cost of Rs.2000/- to the plaintiffs-respondents nos. 1 to 7 through his learned counsel Mr. K.B. Verma within two weeks. 7. The defendant-appellant has preferred this appeal under Order 43 (i) (d) of the Code of Civil Procedure against the order dated 20.12.2011 passed by the learned Sub-Judge-VIII, Motihari, East Champaran by which his Misc. Case No.6/2006 filed under Order 9 Rule 13 of C.P.C. for setting aside the ex-parte decree dated 24.12.2004 passed in Title Suit No.139/1994 has been dismissed as non-maintainable. 8. The plaintiff- respondent nos. 1 to 7 filed Title Suit No.139/1994 against the appellant and defendant respondent nos. 8 to 10 for declaration of tile upon the suit property including Cold Storage as mentioned in the plaint. The notice was issued to the defendants. The appellant appeared and filed his written statement on 10.05.1996 and was making Pairvi. The case was transferred from Sub-Judge, Court No.III to Sub-Judge, Court No.VIII on 3.11.2013. The appellant defendant did not make the Pairvi and ultimately suit was decreed ex-parte on 24.12.2004. 9. The learned counsel for the appellant has submitted that the appellant was making Pairvi in the court of Sub-Judge III and thereafter deputed one Nagina Pandey, Advocate Clerk to inform about the case. On 30.03.2006, the appellant could know that the suit has been decreed. Thereafter, he made inquiry and on 10.04.2006 after inspection of the record, he came to know that the suit was decreed ex-parte. On 30.03.2006, the appellant could know that the suit has been decreed. Thereafter, he made inquiry and on 10.04.2006 after inspection of the record, he came to know that the suit was decreed ex-parte. After inspection of the record, the appellant could know that the aforesaid T.S. No.139/1994 was transferred from the court of Sub-Judge-III to Sub-Judge-VIII on 3.11.2003. The record was received by the court of Sub-Judge-VIII on 5.11.2003. The copy of the order-sheet has been made on the record vide supplementary affidavit filed on behalf of the appellant. From perusal of the record, it appears that from 6.11.2003 to 28.06.2004, no party appeared as the Presiding Officer was promoted. The plaintiff appeared on 20.07.2004. The issues were framed on 30.08.2004. The evidence on behalf of the plaintiff was stared from 13.09.2004. 10. It has also been submitted that neither the Pairvikar nor the transferor court gave any notice regarding the transfer of Title Suit No.139/1994 to the court of Sub-Judge-VIII. Without giving any notice to the appellant the suit has been decreed, as such, the ex-parte decree in invalid. In support of his contention, he has relied upon a decision in the case of Kishore Kumar Agrawal Vs. Basudeo Prasad Gutigutia and anr. reported in AIR 1977 Patna 131 in which it has been held that transferor court must give notice of transfer to parties. Ex-parte decree passed against party without notice is invalid. 11. He has further submitted that the petition filed under Order 9 Rule 13 of C.P.C. by the defendant appellant for setting aside the ex-parte decree dated 24.12.2004 was maintainable but the learned Sub-Judge has held that the petition filed under Order 9 Rule 13 of C.P.C. by the defendant appellant is not maintainable and as such, Misc. Case No.6/2006 has been dismissed. In support of his contention, he has referred to a decision in the case of Prakash Chander Manchanda and anr. Vs. Janki Manchanda reported in (1986) 4 Supreme Court Cases 699 in which in similar matter, it has been held that the learned trial court will proceed to hear and dispose of the application under Order 9 Rule 13 of C.P.C. 12. Vs. Janki Manchanda reported in (1986) 4 Supreme Court Cases 699 in which in similar matter, it has been held that the learned trial court will proceed to hear and dispose of the application under Order 9 Rule 13 of C.P.C. 12. The learned counsel for the plaintiff respondents has submitted that the defendant appellant has been negligent and has not contested the case knowingly and the case has been lingered to harass the plaintiff, as such, the petition under Order 9 Rule 13 of C.P.C. filed by the defendant appellant has rightly been rejected by the learned Sub-Judge. In support of his contention, he has relied upon a decision in the case of Basanti Devi Vs. Gena Sah and others reported in 2002 92) PLJR 12. 13. In the case of Basanti Devi (supra), the suit proceeded ex-parte. The defendants did not file their written statement and the suit was decreed ex-parte and the execution proceedings started vide Execution Case No.1 of 1999. In the year 2000 the defendant 1 (a) filed a miscellaneous case under Order 9 Rule 13 of the Civil Procedure Code that there had been an ex-parte decree. His main defence was that the suit had proceeded ex-parte as he had no knowledge of it and he had not been served notice. But it was found otherwise. The defendant had chosen not to file a defence against the plaint case. 14. In the case in hand, the defendant appellant has appeared and filed his written statement. Later on, the case was transferred from Sub-Judge-III to Sub-Judge-VIII on 3.11.2003. 15. Admittedly, the transferor court has not given any notice to the parties about the transfer of the case. It further appears from the order-sheet that the evidence of the plaintiff has started on 13.09.2004. No copy of affidavit of witnesses on behalf of plaintiff has been offered/given to the learned counsel for the defendant-appellant nor there is any endorsement that the appellant/his counsel has refused to accept the affidavit of the witnesses. 16. Considering the facts and circumstances stated above, in my opinion, the impugned order is not fit to be sustained It is set aside. The matter is remanded to the learned trial court to decide Misc. Case No.6/2006 after hearing both the parties. 17. In the result, this appeal is allowed. 18. There will be no order as to costs. ?