BIJAY SINGH Vs. ADDITIONAL DIST JUDGE IIND MUZAFFARNAGAR

JUDGEMENT

(1.) By means of the aforesaid writ petition, the petitioners have challenged the order dated 11-11-1987, passed by the II Additional District Judge, Muzaffarnagar (Respondent No. 1) allowing the application of the defendants-opposite parties under S. 5 of the Limitation Act for condoning the delay in filing the application under Order 9 Rule 13, CPC for setting aside the ex parte decree dated 28-5-1986. By the connected Civil Revision the revisionists have challenged the subsequent order dated 13-1-1988 by which the respondent No. 1 allowed the application under Order 9 Rule 13, CPC and set aside the ex parte decree. The counsel for the parties are agreed that the writ petition and the Civil Revision should be heard and decided together at the admission stage itself. With the consent of the parties, the aforesaid cases are being decided together at the admission stage under the rules of the Court.

(2.) Briefly stated the facts so far as they are relevant for the purpose of the present cases are that Suit No. 122 of 1975 was filed by one Ram Saran for cancellation of the three Gift Deeds said to have been executed by him. The said Ram Saran died during the pendency of the suit and was substituted by his daughter Smt. Ilam Kaur. The suit was being contested by the defendant-opposite parties Mahabir and others. This suit was decreed ex parte on 28-5-1986 in the absence of the defendants and their counsel. On 8-7-1986 an application was filed under S. 5 of the Limitation Act (paper No. 3-C) for condoning the delay in filing the application under Order IX Rule XIII C.P.C. and another application was filed under Order IX Rule XIII CPC (paper No. 5-C) for setting aside the ex parte decree dated 28-5-1986. Both these applications were supported by an affidavit. It was averred that the plaintiff had closed evidence and the evidence of the defendants had started. The cross-examination of the defendant D. W. 2 Mahabir had commenced but could not be completed. On 17-4-1986 which was the date fixed for evidence, an application was filed by the plaintiff for adjournment of the case. The said application was allowed by the Court and the case was ordered to be put up on 2-7-1986. It has been further averred that after this date was fixed, the defendant Mahabir who was looking after the pairvi of the case on behalf of the defendants and whose cross-examination was to go on, left for his village, on the bona fide belief that the evidence would now be recorded on 2-7-1986. The defendant, however, came to know on 4-7-1986 that the suit has been decreed against the defendants on 28-5-1986. On enquiry, it was found out that on 17-4-1986 when the defendant had left the Court, at the instance of the counsel for the plaintiff, the date was advanced by the Court from 2-7-1986 to 14-5-1986. This date was not known to the defendant and hence he did not appear on 14-5-1986 and he being absent and his counsel being busy nobody attented to the case when it was called out on 14-5-1986 and the Court passed an order fixing 30-7-1986 for ex parte hearing. On 26-5-1986 the plaintiffs filed an application (paper No. 376-D) pointing out to the Court that under the explanation added to Order 17 Rule 2, CPC the Court should decide the suit on merits and not ex parte as substantial portion of the evidence of the defendant had been recorded and the defendants and their counsel had absented and failed to appear on 14-5-1986. The prayer was made for recalling the order dated 14-5-1986 fixing 30-7-1986 for ex parte hearing and also praying that the matter be heard soon. It is noteworthy that copy of this application was not served on the counsel for the defendants. The said application was heard by the Court on 27-5-1986, after allowing the same the Court heard the case on merits and decreed the suit on 28-5-1986. It was averred that the defendant (Mahabir) had no knowledge about the change of the dates and consequently he did not appear on 14-5-1986. He had come to the Court on 2-7-1986 but on the said date the Presiding Officer was on leave and he was informed by the clerk of the counsel as well as by the Court Reader that 30-7-1986 has been fixed for final hearing. The said defendant went away with this impression that the evidence of the defendants will be recorded on 30-7-1986. However, it was found later that the suit had been decreed on 28-5-1986. The defendants learnt about the ex parte decree in the village only on 4-7-1986 and after inspection of records, filed the application under Order IX Rule 13 C.P.C. along with an application under S. 5 of the Limitation Act for condoning the delay, if any, in filing the application for setting aside the ex parte decree.

(3.) These applications were contested by the plaintiffs and it was denied that the defendants were not aware of the date 14-5-1986. It was also denied that the defendant (Mahabir) had come to the Court on 2-7-1986 and was informed that the suit was fixed on 30-7-1986, as alleged.