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2016 DIGILAW 1733 (ALL)

Vishnu Swaroop Sharma v. Nagendra Kumar Sharma

2016-05-05

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri P.K. Rao holding brief of Sri Chandra Bhan Gupta for the petitioner and Sri M.H. Khan for the respondents. 2. This petition has been filed for setting aside the order of Civil Judge (Sr. Division) dated 7.8.2015 allowing the application under Order 9, Rule 13 CPC and setting aside the ex parte decree dated 19.8.2008 and restoring the suit to its original number and the order of Additional District Judge dated 27.2.2016 dismissing the revision of the petitioner filed against the aforesaid order. 3. The admitted fact of the case is that Mani Ram Sharma, father of the respondent was sole defendant in the suit. It is alleged that on carving out new district Gautam Budh Nagar in the year 1999 the suit was transferred from Khurja to Gautam Budh Nagar in the year 2000. Thereafter Mani Ram Sharma did not appear in the suit due to his continuous illness and ultimately he died on 27.4.2003 and after his death the plaintiff filed an application for substituting the heirs of Mani Ram Sharma namely Nagendra Kumar Sharma, the respondent. In this substitution application, the notice could not personally served upon the respondents. The court below proceeded in the substitution application on the basis of publication of notice in Newspaper "Dainik Vartman Satta". Thereafter the suit proceed ex parte by order dated 11.9.2007 and decreed ex parte on 19.8.2008 considering the written statement filed by father of the respondent. The application for recall of the order dated 19.8.2008 was filed on 18.5.2012 along with delay condonation application. In the application for condonation the delay as well as in the affidavit it has been stated by the respondent that service of notice in the substitution application was not affected upon him. The registered post was returned with the endorsement that respondent was living outside of village. Thereafter notice was published in the Newspaper "Dainik Vartaman Satta" which has not circulated in village Bhaipur Brahmnan and heir of defendant could not know about pendency of the suit. The application was contested by the petitioner on the ground that on his own allegation in the application, defendant has knowledge about transfer of the suit from Khurja to Gautam Budh Nagar and he deliberately did not appear in the suit after transferring the suit in the year 2000. The application was contested by the petitioner on the ground that on his own allegation in the application, defendant has knowledge about transfer of the suit from Khurja to Gautam Budh Nagar and he deliberately did not appear in the suit after transferring the suit in the year 2000. Since the defendant and his heir have knowledge about pendency of the suit as such in view of 2nd proviso of Order 9, Rule 13 CPC the ex parte decree is not liable to be set aside. The trial court after hearing the parties found that the summons of the suit were not served upon heir of defendant therefore this was a sufficient cause for him for not contesting the suit. Accordingly he condoned the delay and allowed the application under Order 9, Rule 13 CPC and set aside the order dated 19.8.2008 on the cost of Rs. 2000/- out of which Rs. 1000/- was paid to the plaintiff and Rs. 1000/- was directed to be deposited before District Legal Services Authority. The revision filed by the petitioner has also been dismissed against the aforesaid order. Hence this petition has been filed. 4. Counsel for the petitioner submits that according to own allegation, the defendant has knowledge about the pendency of the suit as such in view of 2nd proviso of Order 9, Rule 13 CPC , the ex parte decree was not liable to be set aside. In fact while passing the decree, the case set up by father of the respondent in written statement has been considered. The court below has illegally set aside the ex parte decree. 5. I have considered the arguments of the counsel for the parties and examined the records. 6. Second proviso of Order 9, Rule 13 CPC provides : - "13. The court below has illegally set aside the ex parte decree. 5. I have considered the arguments of the counsel for the parties and examined the records. 6. Second proviso of Order 9, Rule 13 CPC provides : - "13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an Order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an Order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be sent aside as against all or any of the other defendant also: Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree." Allahabad High Court added the following proviso: "Provided also that no such decree shall be Set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew: or but for his wilful conduct would have known: of the date of hearing in sufficient time to enable him to appear and answer the plaintiffs claim." 7. In this case, the respondent in the application for setting aside the ex parte decree has stated that the suit was transferred in the year 2000 from the court at Khurja to Gautam Budh Nagar but no information regarding transfer of the suit was given to sole defendant Mani Ram Sharma, who was suffering from illness, as such he could not get any information about the suit. Thereafter Mani Ram Sharma died on 27.4.2003. Thus so far as Mani Ram Sharma is concerned, the explanation has been given that Mani Ram Sharma was suffering from illness since 2000 and died on 27.4.2003, thus it was sufficient ground for Mani Ram Sharma for not appearing in the suit before the court below on the dates fixed in the suit. 8. So far as respondent is concerned, respondent has stated that in the substitution application notice was not personally served upon him and registered notice was returned with the endorsement that addressee was residing outside the village. Notice was sent at the address of village Bhaipur Bharhmnan. The plaintiff was well aware that respondent was not residing at village Bhaipur Bharhmnan but the notice was served on wrong address. Subsequently notice was affected through publication and in view of explanation to Article 123 of Limitation Act, the substituted service shall not be admitted to due service. This is not the case of irregularity in service but it is the case that there was no service at all and the respondent had no knowledge about the pendency of the suit. In such circumstances, this court is not inclined to interfere with the order of court below by which ex parte decree has been set aside. 9. However the suit is of the year 1996, the parties are appearing before this Court they are directed to appear before the trial court and contest the suit and the trial court shall expedite the suit and try to conclude it expeditiously, preferably within a period of one year without granting any unnecessary adjournment to either of the parties. With the aforesaid observation, petition is disposed of. Petition disposed of.