MOTI LAL Vs. STATE OF U P

JUDGEMENT

(1.) IN this petition the Petitioner is grieved by the twin orders/judgment dated 24.4.2003 and 28.8.2003 rendered by Additional Commissioner, Gorakhpur Division, Gorakhpur and Board of Revenue respectively.

(2.) THE facts forming background to the present petition are that the Petitioner instituted a declaratory suit under Section 229B of the U.P.Z.A. and L.R. Act concerning plot Nos. 9, 96, 125 and 156 which culminated in being decreed ex parte. Opposite parties 6 and 7 who are transferees from opposite -party Nos. 8 to 12 prior to institution of the suit, preferred application under Section 151, Code of Civil Procedure for setting aside ex parte decree dated 19.2.2001, thereby claiming their real title on the dint of a registered sale deed executed on 27.11.1997 by Defendants herein arrayed as Opposite Parties 8 to 12. The aforesaid application did not find favour and was rejected by the Assistant Collector. Aggrieved, the Opposite Parties 6 and 7 preferred a revision which was allowed by the revisional authority and in consequence, the ex parte decree was set aside after condoning delay in filing application. The direction embodied in the impugned judgment was to the effect that the trial court would permit impleadment of transferees as Defendants in the suit and shall afford opportunity to them to adduce evidence and to take the suit to some logical end after hearing the parties in accordance with law. This order received affirmance of the Board of Revenue vide the order dated 28.8.2003.

(3.) IN order to appreciate the controversy in proper perspective, I feel inclined to acquaint myself with the provisions contained in Order I, Rule 10, Code of Civil Procedure and also the Order IX Rule 13, C.P.C., Order I, Rule 10 (2) envisages that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Likewise, Order IX, Rule 13, Code of Civil Procedure envisages that in any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. The proviso to the aforesaid envisages that where the decree is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also. Further the proviso added thereto provides that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiffs claim. The Explanation to the aforesaid Order IX Rule 13, Code of Civil Procedure emphasises that where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal no application shall lie under this rule for setting aside the ex parte decree. From a conjoint reading of the aforesaid provisions it would be eloquent that an application under Order I, Rule 10, Code of Civil Procedure could be filed only in a pending proceeding. Likewise, an application under Order IX Rule 13, could be preferred by a person who was arrayed as Defendant in a suit and if a decree comes to be passed ex parte against him. It brooks no dispute that the opposite parties 6 and 7 were transferees by means of valid sale deed executed in their favour by Respondents 8 to 12 prior to the institution of suit. It is also obvious and bears no repudiation that transferees were neither impleaded as Defendants nor proceedings were pending when they gained knowledge that the Plaintiffs had obtained ex parte decree against their transferors and in this perspective, the conclusion is inescapable that real title of land in suit vested in them through sale deed and they validly filed application under Section 151, Code of Civil Procedure which can be invoked in aid being applicable to proceeding under Section 229B of the U.P.Z.A. and L.R. Act. The excerption of Section 151, Code of Civil Procedure as below would lend cogency to the view that Section 151 of the Code of Civil Procedure can be called in aid for the purpose of the controversy involved in this petition: