Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.265 of 2008 ====================================================== 1. Rajeshwar Prasad Gupta son of late Parmeshwar Prasad. 2. Sabitri Devi wife of Late Parmeshwar Prasad 3. Bijay Kumar Gupta son of late Parmeshwr Prasad 4. Smt. Namita Kumari daughter of Parmeshwar Prasad. 5. Punam Kumari Daughter of Late Parmeshwar Prasad, all resident of Mohalla-Dalhatta Bazar, P.S. Kotwali, District Munger. .... .... Petitioner/s Versus 1. Dist. Superintendent of Education, Munger. 2. Smt. Bina Devi, Headmistress, Rajkiya Kanya Vidyalaya, Dalhatta- Bazar, Munger. 3. The State of Bihar. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN .... .... Opposite Parties ORAL ORDER 10 22-02-2013
Legal Reasoning
Heard Mr. Ujjawal Kumar Sinha, learned counsel for the petitioner and Mr. Pankaj Kumar, learned A.C. to G.A.8 for the State. I.A. No. 1204 of 2008 This application under Section 5 of the Limitation Act has been filed for condonation of delay in filing the civil revision application. A delay of six days is stated to have been caused in filing the present application. For the reasons assigned, this interlocutory application is 2 Patna High Court C.R. No.265 of 2008 (10) dt.22-02-2013 2 / 7 allowed and the delay in filing the civil revision application is condoned. C.R.No.265 of 2008 This application is directed against the order dated 31.10.2007 passed by Sri Chandrama Singh, learned Additional District and Sessions Judge, F.T.C. VI, Munger in Misc. Appeal No. 35 of 2003 whereby the learned appellate Court while allowing the appeal preferred by the opposite party Nos. 1 and 2, has been pleased to set aside the order dated 24.7.2003 passed in Misc. Case No. 8 of 1997 as also the judgment and decree dated 26.9.1997 passed in Title Suit No. 65 of 1996 by the learned Sub Judge 1st, Munger and has restored the title suit to its original position. Facts of the case in brief is that the plaintiffs-petitioners had filed the Title Suit No. 65 of 1996 as against the opposite parties herein, seeking declaration of title over the suit property as also for a direction to the opposite parties to vacate the suit premises and handover the vacant position thereof to the plaintiffs- petitioners and in the event of failure of the opposite parties to vacate the premises, the same be carried out through the process of the Court. Following the title suit, summons were issued to the 3 Patna High Court C.R. No.265 of 2008 (10) dt.22-02-2013 3 / 7 defendants-opposite parties under the orders of the trial Court on 21.2.1997. Whereas the State through the Collector was impleaded as defendant No.1, the District Superintendent of Education was impleaded as defendant No.2 and the Headmistress of the school as defendant No.3. The order of the trial Court manifest that the summons were found to be validly served on defendant Nos.1 and 3. On 27.6.1997 the State through the Collector filed a petition before the trial Court together with appearance seeking time for filing written statement. Although no written statement was filed thereafter nor any prayer was made in that regard. As the other parties neither appeared nor filed any written statement, the matter proceeded ex-parte and the judgment was delivered on 26.9.1997 and decree was sealed and signed. It is after a lapse of almost 3 months that Misc. Case No. 8 of 1997 was filed under the provisions of Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) by the defendant No.2 i.e. District Superintendent of Education and the defendant No.3, the Headmistress of the school for setting aside the ex parte judgment and decree. Curiously, the State through the Collector was arraigned as opposite party in the miscellaneous case. The miscellaneous case was dismissed on 24.7.2003. The defendant Nos. 2 and 3 filed an appeal giving rise to Misc. Appeal 4 Patna High Court C.R. No.265 of 2008 (10) dt.22-02-2013 4 / 7 No. 35 of 2003 and which has been allowed by the order impugned dated 31.10.2007 and hence the present application. Mr. Sinha, learned counsel for the petitioner with reference to the findings of the trial Court on the adjudication of the miscellaneous case, submits that there is a clear finding of the trial Court that summons were validly served upon the opposite parties and of which the State through the Collector had filed the appearance. It is submitted that the trial Court with reference to Exhibits 1, 1A and 2 has opined that the opposite party Nos. 2 and 3 who were the applicants in the miscellaneous case had all the knowledge about the suit but did not choose to file their appearance or seek leave to file written statement and thus their plea of ignorance about the suit was a false pretence. It is with reference to the conclusion drawn by the appellate Court found at paragraph 10 of the impugned order, submitted that even when the appellate Court has accepted the uncontroverted fact about the knowledge of the suit to the defendants concerned, it has yet misdirected itself by setting aside the order of the trial Court inter alia on grounds of securing ends of justice which is not a ground to set aside the ex-parte judgment and decree under the provisions of Order 9, Rule 13 of the Code. Mr. Sinha, in support of his contention has relied upon a 5 Patna High Court C.R. No.265 of 2008 (10) dt.22-02-2013 5 / 7 Full Bench decision of this Court reported in 2002(2) PLJR 12. The position has been contested by Mr. Pankaj Kumar learned A.C. to G.P.8 for the State. Learned counsel for the State, however could not resist the fact apparent on the records of the proceedings regarding knowledge to the defendants about the suit in question. I have heard learned counsel for the parties and have perused the materials on record. The complete answer to the issue posed before this Court lies in the second proviso of Order 9 Rule 13 of the Code which is as follows:- “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 set aside as against all or any of the other defendants 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] (Emphasis is mine) 6 Patna High Court C.R. No.265 of 2008 (10) dt.22-02-2013 6 / 7
Decision
[Explanation.-Where there has been an appeal against a decree passed exparte 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 for setting aside that ex parte decree.]” The communications entered into between the opposite party Nos. 2 and 3 and the State authorities which formed part of the record in the Court below and have also been placed in this application completely falsified the stand of the opposite party Nos. 1 and 2 who are appellants in the Court below regarding absence of knowledge. Annexure-9 is a letter written by the opposite party No.1, the District Superintendent of Education to the School Inspector on 12.6.1997 requiring him to prepare a response to the Title Suit No. 65 of 1996. A similar letter has been written by the Headmistress on 6.6.1997 placed at Annexure-12 of the proceedings. The letters are much prior to the ex-parte judgment and decree passed on 26.6.1997 in Title Suit No. 26 of 1996. Thus the defendants concerned who were applicants in the miscellaneous case, cannot feign ignorance of the suit and its hearing. The order passed by the learned appellate Court below is contrary to the statutory provisions underlying Order 9 Rule 13 of the Code which does not empower any Court to set aside an ex- parte decree for the ends of justice or for any reason other than found in the provision. 7 Patna High Court C.R. No.265 of 2008 (10) dt.22-02-2013 7 / 7 For the reasons aforesaid, the judgment and order dated 31.10.2007 passed by learned Additional District Judge, F.T.C. VI, Munger in Misc. Appeal No. 35 of 2003 is set aside. This civil revision application is allowed. The order aforesaid however, would not preclude the opposite parties to take recourse to the remedies as may be available to them under law. Bibhash/- (Jyoti Saran, J)