UMARAVATI BAI Vs. BRIJMOHAN SAHU

JUDGEMENT

(1.) Assailing the legality, validity and correctness of the Order dtd. 30/4/2019 passed by Fourth Additional District Judge, Raipur in Misc. Civil Appeal No.9/2019 titled as "Smt. Umravati Bai v. Brijmohan Sahu and Others", the present Civil Revision under Sec. 115 of the Code of Civil Procedure, 1908 (in short, CPC) has been preferred by the original Defendant Smt. Umravati Bai (who died during pendency of this Civil Revision and therefore the matter is now being pursued by her Legal Representative who has been brought on record), by which the appeal filed by her under Order 43 Rule 1 of CPC has been dismissed affirming the Order dtd. 9/1/2019 passed by the First Civil Judge, Class-I, Raipur in Civil M.J.C. No.01/2010 whereby the application preferred by the Applicant/Defendant under Order 9 Rule 13 read with Sec. 151 of CPC has been rejected finding no sufficient cause for setting aside the ex parte decree granted against her on 30/3/2005 after she being proceeded ex parte on 2/2/2002 in the Civil Suit filed by the Plaintiff.

(2.) The original Plaintiff namely Jagdish Ram Sahu (who also died during pendency of the matter before the Court below and therefore the matter is now being pursued by his Legal Representatives brought on record) filed Civil Suit No.83A/88 before the Trial Court against the Defendant for declaration of title and possession over the suit property, wherein after declaring the Defendant ex parte on 15/2/1989, an ex parte decree was passed in favour of the Plaintiff by the Trial Court by its Order dtd. 20/10/1989 which though was set-aside by Order dtd. 17/10/1997 passed in Civil Appeal No.37A/97, filed by the Defendant under Sec. 96 of CPC, holding that the provision of Order 5 Rule 17 of CPC was not complied with by the Trial Court while passing the said ex parte decree and the suit was ordered to be restored for hearing in accordance with law and fixed the matter on 5/11/1997 with a direction to the Defendant to appear in the matter to pursue her case. Down the line, the matter proceeded and on 13/10/2001 the Plaintiff initiated an interlocutory proceeding in the suit by filing an application under Order 6 Rule 17 of CPC and on 15/1/2002 the Court granted time to the Defendant's counsel for filing their reply to the said interlocutory proceeding initiated by the Plaintiff fixing the matter on 2/2/2002. However, on 2/2/2002, the Defendant was again proceeded ex parte and ultimately, on 30/3/2005, an ex parte decree was passed against the Defendant and in favour of the Plaintiff by the Trial Court. The Defendant then went to challenge the said ex parte decree in Civil M.J.C. No. 01/2010 by filing an application under Order 9 Rule 13 read with Sec. 151 of CPC before the jurisdictional Civil Court which finally proceeded to dismiss the said application by its Order dtd. 9/1/2019. Being aggrieved and dissatisfied with the said Order dtd. 9/1/2019, the Defendant preferred Misc. Civil Appeal No.09/2019 under Order 43 Rule 1 of CPC before the Fourth Additional District Judge, Raipur who however dismissed the appeal of the Defendant by its Order dtd. 30/4/2019 against which the present Civil Revision under Sec. 115 of CPC has been preferred by the Defendant.

(3.) Mr. Anurag Singh, learned Counsel appearing for the Applicant/Defendant, submits that on 2/2/2002, when the suit was proceeded ex parte by the Court, on that date the matter was fixed for hearing on interlocutory proceeding (for reply by the Defendant to the application under Order 6 Rule 17 of CPC filed by the Plaintiff on 13/10/2001) and as such in a proceeding under Order 9 Rule 13 of IPC where an interlocutory proceeding under Order 6 Rule 17 of CPC was impugned, the Trial Court did not have the jurisdiction to proceed ex parte against the Defendant which eventually culminated in an ex parte decree passed on 30/3/2005 against the Defendant and in favour of the Plaintiff and therefore the subsequent proceeding is without jurisdiction and without any authority of law. Thus, the impugned Order of ex parte decree is liable to set-aside for the reason that the Civil Court has not rejected the application and passed the impugned ex parte decree based on the fact that the original Defendant has been proceeded ex parte twice in the proceeding.