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2016 DIGILAW 3841 (ALL)

B. Development Officer v. Radhy Shyam

2016-11-29

RITU RAJ AWASTHI

body2016
JUDGMENT Ritu Raj Awasthi,J. Heard learned Standing counsel for the appellant and perused the records. 2. This First Appeal From Order has been filed under Order 43 Rule 1 (d) of CPC challenging the order dated 15.1.1993, passed in Misc. Case No.28 of 1992, whereby the application moved on behalf of appellant for setting aside the ex-parte decree passed in Motor Accident Claim No.82 of 1986; Radhey Shyam & others Vs. Chandra Kumar Dixit and others has been rejected. 3. As per given facts, Radhey Shyam was going along with his wife, when reached near Village Agrauli, Police Station Mahmudabad a Jeep bearing registration no.USX/4862 belonging to the State Government being rashly and negligently driven by Chandra Kumar hit Smt. Urmila who died next day due to injuries sustained in the said accident. The claim petition was filed by her legal heirs wherein notices were issued to the respondents (including present appellant). The registered notice was also issued in the name of Block Development Officer (appellant no.1), however, none of the respondents preferred to contest hence claim petition was decided ex-parte. It was thereafter that the State of U.P. through Collector, Sitapur applied for setting aside ex-parte decree. The application was rejected on 16.11.1990. Again the driver moved an application for setting aside ex-parte decree, but the application was rejected on 15.10.2011. Then the third application was moved by remaining respondent, the Block Development Officer for setting aside ex-parte decree. It was alleged in the application that the appellant no.1 (BDO) did not receive any notice or summon from the Court of VIIth Additional District Judge in respect of the claim petition. He did not intentionally absented himself from the proceedings. On 6.2.1992 he received a letter intimating therein that the recovery proceedings have been initiated which are pending before the claims Tribunal. It was then that he filed the restoration application on 11.2.1992. 4. Learned counsel for the appellant submits that the claim petition was pending in the Court of VIIIth Additional District Judge, Sitapur, from where it was transferred to VIIth Additional District Judge, Sitapur. After the transfer of the case no intimation by way of notice or otherwise was given to the appellant and, as such, he could not know about the case having been heard in the Court of VIIth Additional District Judge and therefore could not contest the said case. After the transfer of the case no intimation by way of notice or otherwise was given to the appellant and, as such, he could not know about the case having been heard in the Court of VIIth Additional District Judge and therefore could not contest the said case. It is submitted that the application under Order 9 Rule 13 of CPC for recall of order and setting aside ex-parte decree was moved, however, the same was rejected by the impugned order without properly considering the contentions raised therein. It is submitted that opportunity of hearing should have been provided to the appellant being the contesting party in the claim petition. 5. I have considered the submissions made by learned Standing Counsel on behalf of appellant and gone through the records. 6. The order impugned clearly indicates that learned Court below has taken note of the fact that the claim petition was transferred to the Court of VII Additional District Judge after the Court of VIIIth Additional District Judge, Sitapur was abolished and the entire jurisdiction of the Court of VIIIth Additional District Judge was transferred to the Court of VIIth Additional District Judge, Sitapur. Learned Court below has taken the view that it was equally the duty of the contesting parties to have inquired about the fate of the case and they could not have been allowed to sit idle or sleep over the matter without taking due diligence to find out the outcome of the case. The appellant being affected person should have himself watched the proceedings and should have inquired from the Court where the case has been transferred. Learned Court below has held that the appellant earlier was in the knowledge of the proceedings and did not file written statement and as such, it was not at all obligatory to inform the appellant about the proceedings having been held in the court of VIIIth Additional District Judge, Sitapur. 7. It is to be noted that after abolition of the Court of VIIIth Additional District Judge the entire work of Court of VIIIth Additional District Judge, Sitapur was transferred to the Court of VIIth Additional District Judge, Sitapur. 7. It is to be noted that after abolition of the Court of VIIIth Additional District Judge the entire work of Court of VIIIth Additional District Judge, Sitapur was transferred to the Court of VIIth Additional District Judge, Sitapur. It is not the case of appellant that some cases of the Court of VIIIth Additional District Judge were transferred to the Court of VIIth Additional District Judge, in fact, the entire work of Court of VIIIth Additional District Judge was transferred to the Court of VIIth Additional District Judge, Sitapur after abolition of Court of VIIIth Additional District Judge, Sitapur, as such, it was the duty of the appellants to have inquired about the fate of his case and they cannot take advantage of the procedural irregularity that no notice was issued to them after transfer of the case to the Court of VII Additional District Judge, Sitapur. 8. It is to be noted that the recall applications moved earlier by other defendants-respondents for setting aside ex-parte decree were rejected on 16.11.19990 and 15.10.1991. It was the third application moved by remaining respondents including the present appellant which was rejected by the impugned order. Learned Court below has taken note of the fact that there is now specific amendment in the provisions of Order 9 Rule 13 of CPC which provides that no 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 willful conduct would have known the date of hearing in sufficient time, to enable him to appear and answer the plaintiffs' claim. 9. In view of above, I do not find any infirmity or illegality in the findings recorded by learned Court below. As such, no interference is required in the impugned order. 10. The appeal is dismissed.