VISHNU SWAROOP SHARMA Vs. NAGENDRA KUMAR SHARMA

JUDGEMENT

(1.) Heard Sri P.K. Rao holding brief of Sri Chandra Bhan Gupta for the petitioner and Sri M.H. Khan for the respondents.

(2.) This petition has been filed for setting aside the order of Civil Judge (Sr. Division) dated 7.8.2015 allowing the application under Order 9, Rule 13 C.P.C. and setting aside the ex parte decree dated 19.8.2008 and restoring the suit to its original number and the order of Additional District Judge dated 27.2.2016 dismissing the revision of the petitioner filed against the aforesaid order.

(3.) The admitted fact of the case is that Mani Ram Sharma, father of the respondent was sole defendant in the suit. It is alleged that on carving out new district Gautam Budh Nagar in the year 1999 the suit was transferred from Khurja to Gautam Budh Nagar in the year 2000. Thereafter Mani Ram Sharma did not appear in the suit due to his continuous illness and ultimately he died on 27.4.2003 and after his death the plaintiff filed an application for substituting the heirs of Mani Ram Sharma namely Nagendra Kumar Sharma, the respondent. In this substitution application, the notice could not personally served upon the respondents. The court below proceeded in the substitution application on the basis of publication of notice in Newspaper Dainik Vartman Satta . Thereafter the suit proceed ex parte by order dated 11.9.2007 and decreed ex parte on 19.8.2008 considering the written statement filed by father of the respondent. The application for recall of the order dated 19.8.2008 was filed on 18.5.2012 along with delay condonation application. In the application for condonation the delay as well as in the affidavit it has been stated by the respondent that service of notice in the substitution application was not affected upon him. The registered post was returned with the endorsement that respondent was living outside of village. Thereafter notice was published in the Newspaper Dainik Vartaman Satta which has not circulated in village Bhaipur Brahmnan and heir of defendant could not know about pendency of the suit. The application was contested by the petitioner on the ground that on his own allegation in the application, defendant has knowledge about transfer of the suit from Khurja to Gautam Budh Nagar and he deliberately did not appear in the suit after transferring the suit in the year 2000. Since the defendant and his heir have knowledge about pendency of the suit as such in view of 2nd proviso of Order 9, Rule 13 C.P.C. the ex parte decree is not liable to be set aside. The trial court after hearing the parties found that the summons of the suit were not served upon heir of defendant therefore this was a sufficient cause for him for not contesting the suit. Accordingly he condoned the delay and allowed the application under Order 9, Rule 13 C.P.C. and set aside the order dated 19.8.2008 on the cost of Rs. 2000.00 out of which Rs. 1000.00 was paid to the plaintiff and Rs. 1000.00 was directed to be deposited before District Legal Services Authority. The revision filed by the petitioner has also been dismissed against the aforesaid order. Hence this petition has been filed.