LAXMI PRASAD DUBEY Vs. GULAM ALI

JUDGEMENT

(1.) THIS revision is preferred by one of the defendants against the order by which the defendants' appeal under Order 43, Rule 1 (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code')has been dismissed by order dated 22-1-1999 passed by Smt. Nirmala Singh, Vth additional District Judge, Bilaspur (hereinafter referred to as 'the lower appellate Court')in Miscellaneous Civil Appeal No. 47/98. In this appeal, the defendants had challenged the order dated 17-10-1997 passed by Shri S. S. Netam, IIIrd civil Judge Class-II, Bilaspur (hereinafter referred to as 'the trial Court') in Miscellaneous Civil Case No. 17/97 by which their application under Order 9, Rule 13 of the Code for setting aside the ex parte judgment and decree dated 23-7-1990 passed in Civil Suit No. 117-A/88 by the trial Court was rejected.

(2.) THIS case demonstrates how a pedantic and hyper-technical view taken by the court while considering an application under section 5 of the Limitation Act, 1963 (hereinafter referred to as "the Act")for condoning the delay in filing an application under Order 9, Rule 13 of the Code of setting aside ex parte Judgment and decree by the trial Court has resulted in complete failure of Justice. It is, therefore, necessary to unfold a brief history of the litigation, which the defendants are contesting since 1967. The defendants Laxmi Prasad (revisioner), badri Prasad and Rampyari are the two sons and the widow of Shiv Shankar Prasad respectively. In 1963, Laxmi Prasad and Badri prasad had purchased the suit property, i. e. , 7. 56 acres of land situated in Village chandipara, Tahsil Janjgir, District Bilaspur (now District Janjgar) from one Abdul Newaz through a registered sale-deed and obtained possession. The names of Laxmi Prasad and badri Prasad were mutated over the suit lands in the revenue records. In November, 1966, abdul Newaj died. His grand daughter Ramjan bi fraudulently got her name mutated over the suit lands. Proceedings under Section 145 of the Code of Criminal Procedure were initiated in which the S. D. O. declared Ramjan Bi in possession. Since the criminal revision preferred against the order passed by the S. D. O. also filed. Laxmi prasad and his brother Badri Prasad filed civil Suit No. 4-A/70 against Ramjan Bi before the 1st Civil Judge Class-II, Janjgir for obtaining possession of the suit lands, which was decreed in their favour and against Ramjan Bi on 5-5-1971. First Appeal No. 24-A/72 before the Illrd Additional district Judge, Bilaspur preferred by Ramjan bi was also dismissed on 23-10-1972. Ramjan Bi preferred Second Appeal No. 985/72 in the High Court of Madhya Pradesh, which was also dismissed on 23-7-1979. Even after such prolonged litigation, Laxmi prasad and Badri Prasad had no respite because one Raj Bi had filed Civil Suit no. 4-A/72 before the 1st Civil Judge Class-I, bilaspur claiming permanent injunction against defendants Laxmi Prasad, Badri prasad and Shiv Shankar Prasad and also impleading Ramjan Bi as defendant. This civil suit was registered as Civil Suit no. 110-A/88 before the Civil Judge Class-II, bilaspur. The defendant Ramjan Bi died during the pendency of Civil Suit No. 4-A/72 and the proceedings continued for bringing her legal representatives on record. On 16-3-1990, the civil suit was fixed for reply on the application under Order 22, Rule 4 of the Code. Instead of filing reply, Shri S. M. Mendheker, counsel for the defendants pleaded no instructions. Neither the counsel informed the defendants about such a. step nor any notice was given by the Court to the defendants that their counsel had pleaded no instructions. Shockingly, the court proceeded ex parte against the defendants on 16-3-1990 and passed an ex parte judgment and decree on 23-7-1990.

(3.) ON the date of the ex parte judgment and decree, the revisioner/defendant Laxmi prasad was away from Bilaspur in government Services as Tahsildar while brother badri Prasad used to look after the agriculture. The litigation was looked after only by father Shiv Shankar Prasad, who was seriously ill due to old age and cataract in both eyes about two years prior to the ex parte proceeding and was not attending the hearing of the case. However, he did inform his counsel Shri s. M. Mendheker that wherever the counsel will call him, he would somehow manage to come to the Court.