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2016 DIGILAW 1617 (ALL)

Amar Singh v. Kishanpal Singh

2016-04-28

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Azim Ahmad Kazmi for the petitioner. 2. This petition has been filed against the order of Additional District Judge dated 5.12.2015 allowing the appeal and condoning the delay in filing the application under Order 9, Rule 13 CPC and remanded the matter before the trial court to decide the application under Order 9, Rule 13 CPC on merit. 3. The petitioner filed a suit registered as O.S. Suit No. 495 of 2013 for cancellation of sale deed dated 15.3.1999 executed by Amar Singh in favour of Smt. Savitri Devi. It is alleged that Smt. Savitri Devi put appearance on 21.10.2003 and filed her written statement on 8.12.2003. Thereafter she committed default and the suit was proceeded ex parte by order dated 26.4.2005 and decreed ex parte on 2.11.2006. 4. Kishanpal, respondent-1 filed an application under Order 9, Rule 13 CPC on 6.2.2008 stating therein that Smt. Savitri Devi had executed a sale deed dated 16.3.2005 of the land in dispute in his favour. On the basis of sale deed his name was mutated in the revenue record on 24.5.2005. Although name of Kishanpal has been recorded in the revenue record but he was neither impleaded in the suit nor any notice was issued to him by the trial court and suit was decreed ex parte on 2.11.2006. In the affidavit filed in support of the application under Order 9, Rule 13 CPC as well as the application for condonation of delay, Kishanpal has stated that it is only when the petitioners filed an application for recall of the order passed in mutation case then on 17.1.2008 he gave knowledge about the decree dated 2.11.2006. Thereafter he got made inspection of the records through counsel and recall application was filed on 6.2.2008. The petitioner contested the recall application as well as the application for condonation of delay and filed his objection as well as counter affidavit. The trial court after hearing the parties by order dated 22.3.2013 found that in the mutation proceeding recall application was filed by the petitioner on 3.6.2005 which was contested by Kishanpal, therefore at least in the year 2006 through the recall application filed by the petitioner in the mutation case, Kishanpal got knowledge of the ex parte decree dated 2.11.2006. The trial court after hearing the parties by order dated 22.3.2013 found that in the mutation proceeding recall application was filed by the petitioner on 3.6.2005 which was contested by Kishanpal, therefore at least in the year 2006 through the recall application filed by the petitioner in the mutation case, Kishanpal got knowledge of the ex parte decree dated 2.11.2006. Therefore there was no ground for condoning the inordinate delay and accordingly he rejected the application for condonation of delay and also rejected the application under Order 9, Rule13 as time barred. Kishanpal challenged the aforesaid order in Misc. Appeal No. 19. of 2013 which has been allowed by Additional Civil Judge after hearing the parties by the impugned order dated 5.12.2015. Hence this petition has been filed. 5. The argument before this Court is that recall application was filed by the petitioner in the mutation case of Kishanpal on 3.6.2005. Kishanpal appeared on 2.6.2006 and 3.8.2006 and took time for filing his objection but objection was not filed. Subsequently the recall application was allowed on 9.3.2009. It has been admitted by Kishanpal that he has contested the recall application and from the evidence adduced by the petitioner, it is proved that he appeared before the Naib Tehsildar on 2.6.2006 and 3.8.2006. Therefore statement of Kishanpal that he could know about the ex parte decree dated 2.11.2006, is incorrect and the trial court has rightly rejected the application for condonation of delay in filing the application under Order 9, Rule 13 CPC but the appellate court has illegally allowed the appeal. 6. I have considered the arguments of the counsel for the petitioner and examined the records. 7. A perusal of the recall application shows that in the recall application, it has no where mentioned that petitioner has filed a Civil Suit in which ex parte decree dated 2.11.2006 has been passed. Thus merely appearance of the respondent in the recall application will not be sufficient to prove that he had knowledge about the ex parte decree passed in the year 2006. The finding of fact recorded by the court below for condoning the delay is not liable to be interference by this Court in exercise of powers under Article 227 of the Constitution. 8. The petition has no merit, it is dismissed. Petition dismissed.