SUDESH Vs. ADDL DIST JUDGE

JUDGEMENT

(1.) Original Suit No. 729 of 1995 was filed on 12-10-1995 by respondent No. 3 Jamin Raja Khan against the petitioners for decree of permanent injunction and cancellation of sale deed dated 29-12-1994 passed in favour of the petitioners. An ex parte decree dated 1-5-1997 was passed by the Trial Court decreeing the suit of the plaintiff. Then on 24-1-1998, the petitioners (defendants) filed an application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree along with application under section 5 of the Indian Limitation Act. The application for condonation of delay, as well as the application for setting aside the ex parte decree, were both rejected by the Civil Judge vide his order dated 8-3-2001. Misc. Appeal No. 25 of 2001 filed by the petitioners against the said order has also been dismissed by the Additional District Judge vide his order dated 16-5-2002. Aggrieved by the aforesaid orders, this writ petition has thus been filed with the prayer for quashing the order dated 16-5-2002 and 8-3-2001 passed by respondent Nos. 1 and 2 respectively, as well as the ex parte judgment and decree dated 1-5-1997 passed by the respondent No. 2.

(2.) I have heard Sri Chandra Kumar Rai on behalf of the petitioners and Sri M.A. Siddiqui on behalf of the contesting respondent No. 3 and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being disposed of at the admission stage itself.

(3.) In the application filed under Order IX, Rule 13, C.P.C., the petitioners have categorically stated that they had no knowledge of the ex parte decree till 20-1-1998 when the respondent No. 3 had, for the first time, come to disturb the possession of the petitioners over the property in dispute. Immediately thereafter on 22-1-1998, the petitioners contend, they got the file inspected and on 24-1-1998 filed the application for setting aside the ex parte decree on 24-1-1998. The case of the petitioners is that after the execution of the sale deed dated 29-12-1994, they had come in possession of the property in dispute and that the plaintiff-respondent No. 3 is basing his claim solely on the basis of some agreement executed in his favour in the year 1975, which was nearly 20 years prior to the execution of the sale deed in favour of the petitioners. The Civil Judge rejected the applications primarily on the ground that service of notice was deemed to be found sufficient. Although, the notices were never actually served on the petitioners, but since allegedly the petitioners refused to accept the notices, the same were deemed to have been served on the petitioners. It was also mentioned by the Trial Court that in a written statement filed in some other suit, in which the husband of one of the petitioners was a party, a mention of the suit for cancellation of the sale deed had been made and thus also it would be deemed that the petitioners had knowledge of the pendency of the suit. As such, the Trial Court refused to condone the delay in filing the application under Order IX, Rule 13, C.P.C. and thus rejected both the applications. The appeal filed by the petitioners against the order of the Trial Court has also been dismissed on similar grounds.