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2018 DIGILAW 1254 (PAT)

Ramashankar Chaudhary v. Prabhawti Devi

2018-08-08

PRABHAT KUMAR JHA

body2018
JUDGMENT : Prabhat Kumar Jha, J. Heard both sides. 2. The petitioners have filed this civil revision petition against the order dated 03.07.2013 passed by 1st Additional District Judge, Siwan in Misc. Appeal No. 16 of 2008 by which he affirmed the order dated 25.09.2008 passed by Munsif I, Siwan in Misc. Case No. 162 of 1996. 3. The factual matrix of the case in short is that Gorakh Singh(now deceased) filed Title Suit No. 366 of 1992 against Bhabhuti Chaudhary for declaration of title and recovery of possession over the lands as contained in Schedule I of the plaint. The suit was posted for ex parte hearing due to non-appearance of the defendants. Later on, defendants appeared and filed written statement but did not pray for recalling the ex parte order. The defendants never appeared even after filing written statement and the suit was decreed ex parte on 02.09.1996. The petitioner-descendants of Bhabhuti Chaudhary and others filed petition under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree but the learned Munsif dismissed the Miscellaneous Petition of the petitioner. The petitioners thereafter preferred Misc. Appeal No. 16 of 2008 but the same was also dismissed by the impugned order. 4. Mr. Rajendra Narain, learned senior counsel appearing on behalf of the petitioners submits that on the ground of illness, the petitioners could not appear in the suit but both the Courts without taking into consideration the unavoidable circumstances of the petitioners for their non-appearance during the pendency of the suit dismissed the Miscellaneous Case as well as Miscellaneous Appeal. 5. On the contrary, Mr. Vinay Kirti Singh, learned senior counsel appearing on behalf of the respondents submitted that admittedly the defendants appeared in the suit and filed written statement. The suit was decided ex parte under Order 12, Rule 6 C.P.C. and, therefore, the Miscellaneous Petition filed under Order 9, Rule 13 C.P.C. for setting aside the ex parte decree is not maintainable. The option before the petitioners is to file appeal against the aforesaid judgment and decree passed ex parte. 6. Having considered the submissions of both sides and on perusal of the orders, I find that during the pendency of the suit, the petitioners appeared and filed written statement. Petitioners never filed any petition for recalling the order fixing the case ex parte hearing. 6. Having considered the submissions of both sides and on perusal of the orders, I find that during the pendency of the suit, the petitioners appeared and filed written statement. Petitioners never filed any petition for recalling the order fixing the case ex parte hearing. The petitioners although appeared in the suit and filed written statement but thereafter the petitioners stopped appearing in the suit and ultimately the suit was decided ex parte in view of the provisions as contained in Order 12, Rule 6 C.P.C., therefore, the petition filed under Order 9, Rule 13 C.P.C. is itself not maintainable for setting aside any judgment and decree passed under Order 12, Rule 6 C.P.C. Besides this fact, both the Courts found that the petitioners remained negligent in the Court while the suit was pending and even after filing written statement the defendants never appeared. 7. Having considered the facts aforesaid, I find no merit in this civil revision petition. Accordingly, this civil revision petition is dismissed.