RAM PADARATH Vs. CHIRAUNJI DEVI

JUDGEMENT

(1.) Heard Sri M.D. Singh "Shekhar", learned Senior Counsel assisted by Sri P.K. Singh and Sri Prabhakar Vardhan, learned counsels for the petitioners and Sri Ashok Mehta, learned Senior Counsel assisted by Sri Purushottam Maurya, learned counsel for the respondent.

(2.) The present writ petition arose out of proceedings under Order IX rule 13 C.P.C. initiated by the petitioner. Brief facts giving rise to the present writ petition are that the petitioner claiming ownership on the basis of a registered sale deed dated 21.1.1980 submits that their names have been mutated in the revenue records on 31.3.1980. They were continuing in possession. The vendor Sarju Prasad filed a suit bearing Original Suit No. 126 of 1984 on 4.2.1984 for cancellation of the sale deed dated 21.1.1980 executed in favour of the petitioners on the ground that the sale deed was an outcome of fraud committed by the petitioner. The suit was decreed ex-parte on 7.5.1984, however, name of the petitioner continued in the revenue records. No steps were taken to expunge the name of the petitioners. On 16.1.2004, after about 20 years, an application for mutation of her name was filed by opposite party wife of Sarju Prasad after his death on 21.4.1994. The name of opposite party was mutated on 3.3.2004. The petitioners obtained a copy of 'Khatauni' for the purpose of loan on 26.10.2004, then they came to know about the order dated 3.3.2004 expunging their names from the revenue records. Immediately, an application was moved on 26.10.2004 before the Tehsildar for recall of the order dated 3.3.2004. The order dated 3.3.2004 was stayed by the Naib Tehsildar, however, it was vacated on 10.12.2004. An appeal was filed by the petitioners before the Commissioner in which a stay order was passed on 7.1.2005 staying the operation of order dated 10.12.2004 passed by the Naib Tehsildar. Resultantly, the interim order granted on 22.11.2004 by the Naib Tehsildar revived and is still continuing. A restoration application under Order IX Rule 13 C.P.C. was filed by the petitioners on 8.12.2004 alongwith application under Section 5 of the Limitation Act for recall of ex-parte decree dated 7.5.1984.

(3.) The categorical stand taken by the petitioner in application under Order IX Rule 13 was that the entire proceedings of Original Suit No. 126 of 1984 was ex-parte. The suit was filed on 4.2.1984, on the same day summons were issued fixing 24.3.1984 for filing of W.S. and 31.3.1984 for framing issues. On 24.3.1984, written statement was not filed and as such order was passed that no W.S. filed, put up on the date fixed (i.e. 31.3.1984). However, prior to the date fixed i.e. 31.3.1984, the suit was transferred to the Court of XIth Additional Civil Judge, Allahabad from the Court of Munsif (east), Allahabad. However, the matter was taken up by the transferee Court on 31.3.1984 i.e. the date fixed by the Court from which the case was transferred. On 31.3.1984, the transferee court found the service of summons upon petitioners i.e. defendants sufficient by refusal and passed an order to proceed ex-parte fixing 21.4.1984. On 21.4.1984, the next date was fixed as 27.4.1984 for orders. The matter was heard on 27.4.1984 and 30.4.1984 was fixed for judgment. On 30.4.1984, further the date was fixed as 7.5.1984 for judgment and on the said date, the judgment was pronounced and the suit was decreed ex-parte.