Civil Appeal No. 39 of 1990 · High Court · 2025

late Kallu and Smt. Jamuna Devi- opposite party No.5 herein is the daughter of Kallu and the wife of the petitioner, but it was claimed that they were not residing together. It is on record that a suit was filed by one of the daughters of Kallu, namely, Smt. Kamla Devi. In the said suit, the original petitioner as well as the two sisters of the plaintiff, namely, Shyama Devi and Jamuna Devi were impleaded as the defendants. The said suit was decreed ex parte by means of a judgement dated

10.04.1973. As the petitioner was not aware of the said judgement, the petitioner had not put in appearance in the said suit, which led to passing of the ex parte judgement. Subsequently, the petitioner filed an application under Order IX Rule 13 CPC being registered as Misc. Case No.7 of 1984 on

09.01.1984 seeking recall of the ex parte judgement, which was dismissed on 26.11.1990. Against the said order dated

26.11.1990, a Misc. Civil Appeal No.39 of 1990 was preferred before the Additional District Judge, Barabanki, which was allowed on a cost of Rs.500/- vide judgement dated 24.04.1992. It is stated that the said cost was also deposited. Challenging the judgement dated 24.04.1992, the opposite party preferred a writ petition No.1888 (M/S) of 1992, which was allowed and the matter was remanded back with directions to the appellate court to pass a fresh order. The said judgement is dated 23.07.2001. In pursuance of the remand, the appellate court again decided the matter on 30.01.2002 and allowed the Misc. Appeal once again. The said order dated 30.01.2002 passed on remand was once again challenged by the opposite party by filing writ petition No.765 (M/S) of 2002, which was once again allowed by this Court on 06.02.2008. The matter was once again remanded to the appellate court to decide the issue afresh in accordance with law. In terms of the remand order dated

06.02.2008, the Misc. Appeal was dismissed by means of the impugned order dated 25.03.2009, which is challenged before this Court.

4. The submission of learned counsel for the petitioner is that the petitioner was not aware of the ex parte decree. He argues that the petitioner was living separately with his wife and in terms of the office report, wherein service was deemed to be sufficient, a report of the process server was considered, wherein it was stated that at the place of service, the wife of the petitioner was found. He argues that as the petitioner and his wife were staying separately, the report ought to have been disbelieved. He further argues that the ex parte decree in question is cursory in nature and not even one evidence has been considered as is evident from the ex parte decree, which is on record.

5. He further argues that the knowledge acquired by the petitioner in respect of the said ex parte decree, was derived in a suit pending in between the same parties, when the petitioner was confronted at the time of cross-examination to give reply in respect of the ex parte decree and thereafter, the petitioner inquired and thus, there was no material to suggest that the petitioner had any knowledge of the ex parte decree. He thus, argues that on all counts, the petition deserves to be allowed.

6. Learned counsel for the respondents, on the other hand, strongly opposes the writ petition by arguing that in the written statement filed in the suit, pending in between the same parties, it was specifically pleaded that the sale deed has already been set aside and once the written statement was filed, the plaintiff to the suit who is also original petitioner herein had knowledge and having failed to take any steps for setting aside the ex parte decree or preferring an appeal, the application was rightly rejected as highly belated in time. He thus argues that the petition deserves to be dismissed.

7. Considering the submissions made at the Bar and a perusal of the ex parte decree, which is on record, reveals that the sale deed was executed in favour of the original petitioner by the owner Kallu, the father of the three sisters as he was suffering from the medical illness and could not understand the intent of the person in whose favour sale deed was executed. It was also stated that no consideration amount was paid. Thereafter, no evidence was considered and the suit was decreed ex parte. In the said suit, the wife of the petitioner had taken a legal stand contrary to the stand of the petitioner, which fact itself was enough to demonstrate that the terms in between the petitioner and his wife were not cordial then. With regard to the defence that in the written statement filed in the pending suit in between the same parties, it was stated in paragraph 6 of the written statement that the sale deed has already been quashed, was an inadequate pleading as neither the number of the suit was disclosed nor the date of the decree was revealed. It is well settled that the defence under Order VIII should be specific. During the examination, when the petitioner was confronted with the ex parte decree, he came to know of the said ex parte decree and thereafter took steps.

8. In view thereof, the finding recorded taken by the appellate court with regard to the knowledge cannot be sustained. The order dated 25.03.2009 is set aside. The suit No.174 of 1972 shall be heard afresh and shall be decided in accordance with law.

9. The ex parte decree, being falling short of all parameters of known method of decision making, dated 10.04.1973 is also quashed. The matter is remanded for a decision afresh in accordance with law.

10. The petition is allowed.

11. Any observations made by this Court will not come in the way of deciding the suit on merits. Order Date :- 19.2.2025 Ashutosh ASHUTOSH PANDEY ASHUTOSH PANDEY High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

late Kallu and Smt. Jamuna Devi- opposite party No.5 herein is the daughter of Kallu and the wife of the petitioner, but it was claimed that they were not residing together. It is on record that a suit was filed by one of the daughters of Kallu, namely, Smt. Kamla Devi. In the said suit, the original petitioner as well as the two sisters of the plaintiff, namely, Shyama Devi and Jamuna Devi were impleaded as the defendants. The said suit was decreed ex parte by means of a judgement dated

10.04.1973. As the petitioner was not aware of the said judgement, the petitioner had not put in appearance in the said suit, which led to passing of the ex parte judgement. Subsequently, the petitioner filed an application under Order IX Rule 13 CPC being registered as Misc. Case No.7 of 1984 on

09.01.1984 seeking recall of the ex parte judgement, which was dismissed on 26.11.1990. Against the said order dated

26.11.1990, a Misc. Civil Appeal No.39 of 1990 was preferred before the Additional District Judge, Barabanki, which was allowed on a cost of Rs.500/- vide judgement dated 24.04.1992. It is stated that the said cost was also deposited. Challenging the judgement dated 24.04.1992, the opposite party preferred a writ petition No.1888 (M/S) of 1992, which was allowed and the matter was remanded back with directions to the appellate court to pass a fresh order. The said judgement is dated 23.07.2001. In pursuance of the remand, the appellate court again decided the matter on 30.01.2002 and allowed the Misc. Appeal once again. The said order dated 30.01.2002 passed on remand was once again challenged by the opposite party by filing writ petition No.765 (M/S) of 2002, which was once again allowed by this Court on 06.02.2008. The matter was once again remanded to the appellate court to decide the issue afresh in accordance with law. In terms of the remand order dated

06.02.2008, the Misc. Appeal was dismissed by means of the impugned order dated 25.03.2009, which is challenged before this Court.

4. The submission of learned counsel for the petitioner is that the petitioner was not aware of the ex parte decree. He argues that the petitioner was living separately with his wife and in terms of the office report, wherein service was deemed to be sufficient, a report of the process server was considered, wherein it was stated that at the place of service, the wife of the petitioner was found. He argues that as the petitioner and his wife were staying separately, the report ought to have been disbelieved. He further argues that the ex parte decree in question is cursory in nature and not even one evidence has been considered as is evident from the ex parte decree, which is on record.

5. He further argues that the knowledge acquired by the petitioner in respect of the said ex parte decree, was derived in a suit pending in between the same parties, when the petitioner was confronted at the time of cross-examination to give reply in respect of the ex parte decree and thereafter, the petitioner inquired and thus, there was no material to suggest that the petitioner had any knowledge of the ex parte decree. He thus, argues that on all counts, the petition deserves to be allowed.

6. Learned counsel for the respondents, on the other hand, strongly opposes the writ petition by arguing that in the written statement filed in the suit, pending in between the same parties, it was specifically pleaded that the sale deed has already been set aside and once the written statement was filed, the plaintiff to the suit who is also original petitioner herein had knowledge and having failed to take any steps for setting aside the ex parte decree or preferring an appeal, the application was rightly rejected as highly belated in time. He thus argues that the petition deserves to be dismissed.

7. Considering the submissions made at the Bar and a perusal of the ex parte decree, which is on record, reveals that the sale deed was executed in favour of the original petitioner by the owner Kallu, the father of the three sisters as he was suffering from the medical illness and could not understand the intent of the person in whose favour sale deed was executed. It was also stated that no consideration amount was paid. Thereafter, no evidence was considered and the suit was decreed ex parte. In the said suit, the wife of the petitioner had taken a legal stand contrary to the stand of the petitioner, which fact itself was enough to demonstrate that the terms in between the petitioner and his wife were not cordial then. With regard to the defence that in the written statement filed in the pending suit in between the same parties, it was stated in paragraph 6 of the written statement that the sale deed has already been quashed, was an inadequate pleading as neither the number of the suit was disclosed nor the date of the decree was revealed. It is well settled that the defence under Order VIII should be specific. During the examination, when the petitioner was confronted with the ex parte decree, he came to know of the said ex parte decree and thereafter took steps.

8. In view thereof, the finding recorded taken by the appellate court with regard to the knowledge cannot be sustained. The order dated 25.03.2009 is set aside. The suit No.174 of 1972 shall be heard afresh and shall be decided in accordance with law.

9. The ex parte decree, being falling short of all parameters of known method of decision making, dated 10.04.1973 is also quashed. The matter is remanded for a decision afresh in accordance with law.

10. The petition is allowed.

11. Any observations made by this Court will not come in the way of deciding the suit on merits. Order Date :- 19.2.2025 Ashutosh ASHUTOSH PANDEY ASHUTOSH PANDEY High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench