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2015 DIGILAW 1172 (JHR)

Raj Kumar Agarwal v. Mohan Lal Agarwal

2015-09-23

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 03.11.2014 in Title Appeal No. 4 of 2008 whereby, the application filed by the petitioners seeking stay of further proceeding in Title Appeal No. 4 of 2008 has been rejected, the present writ petition has been filed. 2. In Title Eviction Suit No. 14 of 1995 the petitioners were defendant nos. 5 and 6. The petitioners assert that they were not served summons and accordingly, they did not appear in the 2 eviction suit. Finally, the eviction suit was decreed vide judgment and order dated 25.02.2008, against which the substituted defendant no. 1 filed Title Appeal No. 4 of 2008. In the meantime, the decree holders instituted Title Execution Case No. 3 of 2008 for execution of decree dated 10.03.2008. Notices were issued to the petitioners in the said execution case and the petitioners appeared on 11.12.2008 in the execution case. It is stated that after obtaining copies of judgment and decree and other documents in Title Eviction Suit No. 14 of 1995, the petitioners filed a petition under Order IX Rule 13 CPC for setting aside exparte judgment and order dated 25.02.2008 and decree dated 10.03.2008. The said petition was registered as Miscellaneous Case No. 1 of 2009 and it was admitted on 01.05.2009. Thereafter, the petitioners filed application dated 22.07.2014 seeking stay of further proceeding in Title Appeal No. 4 of 2008. The said application has been dismissed vide impugned order dated 03.11.2014. Aggrieved, the petitioners have approached this Court by filing the present writ petition. 3. Mr. Kailash Prasad Deo, the learned counsel for the petitioners submits that the proceeding in Title Appeal No. 4 of 2008 would disclose that service of summons as mandated under the Code of Civil Procedure was not effected upon the petitioners still, the suit proceed exparte against the petitioners. The petitioners when were served notices in Title Execution Case No. 3 of 2008 came to know about exparte judgment and order dated 25.02.2008. The petitioners thereafter filed petition under Order IX Rule 13 CPC for setting aside exparte judgment and decree in Title Eviction Suit No. 14 of 1995. The petitioners when were served notices in Title Execution Case No. 3 of 2008 came to know about exparte judgment and order dated 25.02.2008. The petitioners thereafter filed petition under Order IX Rule 13 CPC for setting aside exparte judgment and decree in Title Eviction Suit No. 14 of 1995. In these facts, it is contended that if the further proceeding in Title Appeal No. 4 of 2008 is not stayed, a legal right conferred under the Code would be taken away and the Miscellaneous Case No. 1 of 2009 which has already been admitted, would be rendered infructuous. It is further submitted that by declining an order staying further proceeding in Title Appeal No. 4 of 2008, the appellate court has exercised power vested in the trial court which is in seisin of Miscellaneous Case No. 1 of 2009. 4. Mr. Mahesh Tewari, the learned counsel for the respondents submits that the institution of Miscellaneous Case No. 1 of 2009 by the petitioners does not disclose bonafide of the petitioners. The petitioners initially did not appear in the eviction proceeding and about 5 years after the suit was decreed, they filed an application seeking stay of further proceeding in T.A. No. 04 of 2008. It is further contended that the trial court has given cogent reason for dismissing application dated 22.07.2014 and therefore, no interference is required in the matter. 5. I find that the petitioners have taken a plea that they were not served summons as mandated under the Code which prevented them from appearing in Title Eviction Suit No. 14 of 1995. The petitioners claimed that they could have knowledge about exparte judgment and decree in Title Eviction Suit No. 14 of 1995 only after they received notices in Execution No. 3 of 2008 on 04.12.2008. The petitioners obtained copies of necessary documents including the judgment and decree in Title Eviction Suit No. 14 of 1995 on 07.01.2009. It is not in dispute that Title Appeal No. 4 of 2008 was instituted on 26.03.2008 in which the petitioners have been arrayed as respondent nos. 5 and 6. The petitioners admit that they were served notices in Title Appeal No. 4 of 2008 and they do not deny that they put their appearance in the pending appeal on 05.07.2014 however, they have not disclosed the date of service of notice. 5 and 6. The petitioners admit that they were served notices in Title Appeal No. 4 of 2008 and they do not deny that they put their appearance in the pending appeal on 05.07.2014 however, they have not disclosed the date of service of notice. The petitioners also admit that before filing Miscellaneous Case No. 01 of 2009, notice in Execution Case No. 03 of 2008 was received by them on 04.12.2008 and they obtained record of Title (Eviction) Suit No. 14 of 1995. Against an exparte judgment and decree, a party can prefer appeal under Section 96 CPC or he can file a petition under Order IX Rule 13 CPC. On 07.01.2009 when the petitioners instituted Miscellaneous Case No. 01 of 2009 under Order IX Rule 13 CPC, Title Appeal No. 04 of 2008 was already filed by one of the defendants. The petitioners who knowingly instituted Miscellaneous Case No. 01 of 2009 cannot contend that if Title Appeal No. 04 of 2008 is finally allowed, Miscellaneous Case No. 01 of 2009 filed by them would be rendered infructuous. On the contrary, if Miscellaneous Case No. 01 of 2009 is finally allowed and exparte judgment and order dated 25.02.2008 is set-aside, Title Appeal No. 04 of 2008 would be rendered infructuous in as much as, the suit was filed for eviction of the defendants from the suit schedule property. In application dated 22.07.2014, the petitioners have averred as under: 1. “That on 05.07.2014 respondent no. 5 and 6 has appeared before your honour's court and prays that the appellant may be directed to furnish the memo of appeal to the present petitioners. 2. That it is important to mention here that the order passed by the learned lower court against this petitioner is exparte and this petitioner's respondent no. 5 and 6 has filed a miscellaneous case under Order 9 Rule 13 C.P.C. Before the learned Lower Court bearing miscellaneous Case no. 1 of 2009”. 6. In the present proceeding the petitioners have suppressed the date of service of summons upon them in Title Appeal No. 04 of 2008. Without disclosing source of knowledge regarding pendency of Title Appeal No. 04 of 2008 the petitioners have simply averred that they put their appearance in the Title Appeal on 05.07.2014. 1 of 2009”. 6. In the present proceeding the petitioners have suppressed the date of service of summons upon them in Title Appeal No. 04 of 2008. Without disclosing source of knowledge regarding pendency of Title Appeal No. 04 of 2008 the petitioners have simply averred that they put their appearance in the Title Appeal on 05.07.2014. Though, an exparte order can be challenged by filing appeal under Order IX Rule 13 CPC, in the present case in view of the pending Title Appeal, it was not open to the petitioners to file petition under Order IX Rule 13 CPC. Since the Title Appeal was already filed by one of the defendants, the petitioners could have challenged the exparte judgment and order dated 25.02.2008 by filing a separate appeal under Section 96 CPC only. Considering the aforesaid facts, I am not inclined to interfere in the matter and accordingly, the writ petition is dismissed.