MAYA SHANKAR PRASAD Vs. KRIPA SHANKAR

JUDGEMENT

(1.) THIS revision has been filed against the order dated 20-8-99 passed by SDO district Ballia in case No. 542 of 99 under Section 229-B of the UPZA and LR Act.

(2.) BRIEFLY , the facts of the case are that Maya Shankar Prasad instituted a suit for declaration of his rights. Summons were issued to the defendant, but there was no proper service on him. Notice was thereafter published in a newspaper. At the time of hearing before the trial Court no body appeared on behalf of the defendant. The trial Court by its order dated 28-6-95 decreed the suit ex parte. Kripa Shanker defendant moved an application for setting aside ex parte decree. This restoration application was accompanied by an affidavit and an application under Section 5 of the Indian Limitation Act. During the pendency of the proceedings an application was moved by Kripa Shanker stating therein that the suit brought by Maya Shankar was not maintainable either under Section 229-B of the UPZA and LR Act or under Section 59/61 of the U.P. Tenancy Act. Hence, the ex parte decree passed by the trial Court in respect of abadi land deserves to be set aside. It was also stated that the decree had been obtained by playing fraud upon the Court and should be set aside. Objection was taken on behalf of Maya Shanker that the application for restoration was barred by time and this question should be decided as a preliminary issue. The trial Court by its order dated 20-8-99 observed that the question of limitation would be disposed of while considering the restoration application itself. The present revision challenges this order.

(3.) FROM a perusal of the record it is a clear that there was no service on the defendant and the trial Court had acted illegally in passing the ex parte decree. The defendant applicant had moved an application for restoration alongwith an affidavit and an application under Section 5 of the Indian Limitation Act. The delay in filing the restoration application had been explained satisfactorily and deserve to be condoned. The order dated 20-8- 99 passed by the trial Court is correct and cannot be said to be illegal or without jurisdiction. This order does not call for any interference at this stage. As a matter of fact the order dated 28-6-95 had been passed without giving an opportunity of hearing to the other side and should be set aside.