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2017 DIGILAW 1824 (JHR)

Madhuri Sharma v. Sabita Devi

2017-10-31

SHREE CHANDRASHEKHAR

body2017
ORDER : S. Chandrashekhar, J. 1. The petitioner is aggrieved of order dated 10.2.2016 passed in Civil Miscellaneous Appeal No. 6 of 2015 and order 3.5.2016 passed in Civil Miscellaneous Case No. 6 of 2016. Another prayer is for setting-aside judgment and decree dated 8.8.2013 passed in Title(D) Suit No. 25 of 2002. Petitioner is the defendant in the eviction suit. Briefly stated, Title(D) Suit No. 25 of 2002 was instituted for ejection of the petitioner from the tenanted premises on the ground of default in payment of rent and personal necessity of the plaintiff. A decree for declaration of plaintiffs ownership over the suit property and recovery of possession of the tenanted premises was also sought. In the suit, the defendant appeared on 15.3.2002 and prayed time for filing written statement, however, in spite of sufficient opportunities granted, he did not file written statement and consequently, he was debarred from filing written statement vide order dated 10.12.2002. Thereafter, the suit proceeded ex parte. The plaintiff examined six witnesses and produced several documents. The suit was decreed vide judgment and order dated 8.8.2013 and the decree was sealed and signed on 17.8.2013. The petitioner filed an application on 14.2.2014 vide, Misc. Case No. 4 of 2014 purportedly under Order IX Rule 13 CPC for setting aside ex parte decree in a Title(D) Suit No. 25 of 2002. This application was dismissed on 6.5.2015, against which the petitioner preferred Civil Misc. Appeal No. 6 of 2015. The appellate court, after recording a finding that the order dismissing application under Order IX Rule 13 CPC does not suffer from any defect, dismissed the appeal preferred by the petitioner. It appears that the petitioner has filed Civil Misc. Case No. 6 of 2016 under Section 114 read with Order XLVII Rule 1 r/w Section 151 CPC for review of order dated 10.2.2016 passed in Civil Misc. Case No. 6 of 2015, which was dismissed on 3.5.2016. 2. The learned counsel for the petitioner referring to decision in "Prakash Chander Manchanda and Anr. vs. Smt. Janki Manchanda" reported in AIR 1987 SC 42 and "Rajendra Prasad @ Rajendra Pd. Agrawal vs. Sheo Narayan Singh" reported in 2005 (1) BLJR 713 submits that the trial court as well as the appellate court have erroneously held that the application under Order IX Rule 13 CPC was not maintainable. vs. Smt. Janki Manchanda" reported in AIR 1987 SC 42 and "Rajendra Prasad @ Rajendra Pd. Agrawal vs. Sheo Narayan Singh" reported in 2005 (1) BLJR 713 submits that the trial court as well as the appellate court have erroneously held that the application under Order IX Rule 13 CPC was not maintainable. The learned counsel for the respondent, however, contends that on merits the petitioner has failed to demonstrate that application under Order IX Rule 13 CPC has substance. The learned counsel points out that in his application the petitioner has disclosed his disability on account of some ailment for the period between 2002 to 2010, however, he has not shown sufficient cause for not appearing in the suit after 2010, which was decreed on 8.8.2013. 3. A perusal of application under Order IX Rule 13 CPC, which was filed by the petitioner on 14.2.2014, would disclose that on account of his treatment the petitioner remained away from Deoghar from 2002 to 2010. His son was suffering from cancer and for that reason he was undergoing severe mental agony, Prima facie, the averment in paragraph No. 3 of this application appears to be false. The defendant had already appeared in the suit on 15.3.2002 and he was debarred from filing written statement on 10.12.2002. There is no explanation offered by the petitioner for his absence in the proceeding of Title(D) Suit No. 25 of 2002 from 2011 till 8.8.2013. In fact, the application under Order IX Rule 13 CPC was grossly barred by limitation, however, it was not accompanied by an application under Section 5 of the Limitation Act (though written in the application dated 14.2.2014 that limitation petition is being filed). Under Article 123 of the Limitation Act, period for filing an application for setting aside an ex parte decree is 30 days. The petitioner had knowledge of the pending suit is an admitted position. In this application in paragraph No. 2, the petitioner has made another false statement, where he has asserted that he had filed written statement in which he had pleaded that he was in permissive possession through Parmeshwar Singh. Admitted position is that the defendant did not file written statement and finally vide order dated 10.12.2002 he was debarred from filing the written statement. In the above facts, the decision in Prakash Chander Manchanda is not applicable in the present case. Admitted position is that the defendant did not file written statement and finally vide order dated 10.12.2002 he was debarred from filing the written statement. In the above facts, the decision in Prakash Chander Manchanda is not applicable in the present case. It was a judgment clarifying the position on applicability of Rule 2 and Rule 3 to Order XVII CPC. 4. Order IX Rule 13 provides that if the defendant satisfies the Court that summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called for hearing, the Court shall make an order setting aside the decree on such terms as to cost as it thinks fit. Summons to the petitioner was served and he had appeared in the suit. The plea taken by him that on account of his illness and illness of his son he could not appear in the suit was not supported by any documentary evidence in respect of their treatment. The petitioner has failed to disclose name of the doctor or hospital and the place where he and his son had gone for their treatment. He has also not disclosed how he came to know about the decree passed in Title(D) Suit No. 25 of 2002 just two days prior to filing of the application under Order IX Rule 13 CPC. These facts are relevant, for the petitioner has approached this Court under Article 227 of the Constitution of India. 5. May be, the application under Order IX Rule 13 CPC was maintainable, however, when it is found that the application under Order IX Rule 13 CPC contained false statements and conditions for setting-aside ex parte decree are not satisfied, in exercise of power under Article 227 of the Constitution of India I am not inclined to interfere with order dated 10.2.2016 passed by the appellate court. Challenge to order dated 3.5.2016 in Civil Misc. Case No. 6 of 2016 also must fail for the above reasons. The prayer seeking setting aside of judgment and decree dated 8.8.2013 passed in Title(D) Suit No. 25 of 2002 is misconceived, for it cannot be challenged through a petition under Article 227 of the Constitution of India. 6. In the result, finding no merit in the writ petition, it is dismissed. The interim order dated 14.7.2016 stands vacated. The prayer seeking setting aside of judgment and decree dated 8.8.2013 passed in Title(D) Suit No. 25 of 2002 is misconceived, for it cannot be challenged through a petition under Article 227 of the Constitution of India. 6. In the result, finding no merit in the writ petition, it is dismissed. The interim order dated 14.7.2016 stands vacated. Let a copy of the order be transmitted to the trial court through 'FAX'.