SALIG RAM Vs. ADDITIONAL CIVIL JUDGE ALIGARH

JUDGEMENT

(1.) A. K. Yog, J. Heard Sri P. C. Jain, Advocate, Counsel for the petitioners and Sri T. B. Pandey, holding brief of Sri B. N. Misra, learned Counsel for Respondent Nos. 3, 4 and 5.

(2.) BASANT Lal Bhargavason of Fateh Chand and Smt. Parmeshwari Devi widow of late Fateh Chand filed Original Suit No. 684 of 1967 in the Court of Munsif, Koil (Aligarh ). against present petitioners Salig Ram and Yogendra. Salig Ram, since died during pendency of the present peti tion, his legal representatives have been substituted under orders of this Court, suit was filed for decree to dispossess the defendants and taking over possession over the property in dispute after getting the disputed structures standing thereon demolished and removed. Suit was decided vide exparte judgment and decree dated 27-10- 1978 inasmuch as the defen dants failed to appear before the court. An application under Order IX, Rule 13, Civil Procedure Code (CPC) was filed by the defendants, which was rejected by the trial court vide judgment and order dated 31-7-1979 (Annexure-II ). Feeling aggrieved, defendants filed Miscellaneous Appeal in the Court of District Judge (Aligarh) under Order LXIII, Rule 1, C. P. C. Said miscellaneous appeal was also rejected vide judgment and order dated 18-12-1979.

(3.) UNFORTUNATELY, none of the parties in the present proceedings have filed a certified copy or photostat copy of the entire order sheet of the trial court for the perusal of this Court so as to ascertain whether any date was fixed in presence of the parties or not. As the record stands, the impugned order dated 31 -7-1989 passed by the trial court and the appellate court order dated 18-12-1979 (Annexure-J) show that these orders cannot be sustained as they suffer from error apparent on the face of the record. Trial court order dated 31-7-1979 shows that it decided applica tion under Order IX, Rule 13, C. P. C. against the defendants on the ground that it was not for the Court to give intimation of the date of hearing of the case4 to the concerned parties. This approach cannot be approved and is wholly preposterous in a given case no date was fixed to the knowledge of the defendants and Commissioner's report was not coming forth, trial court ought to have given notice to the defendants or to the defendant's Counsel. Trial Court also declined to believe the case of the defendants regarding acquiring knowledge of the ex pane decree by finding discrepancy to the extent that in the application it was mentioned that opposite party had disclosed factum of actual knowledge of the ex pane decree to himself whereas in his statement defen dant disclosed that this information was given to the son of the defendant. This cannot be said to be a discrepancy of such a nature so as to disbelieve and reject the case of the defendant. Trial Court also observed, that period between 7-4-1979 to 9-4-1979 was not explained and, therefore, the defendants were not entitled to condonation of delay under Section 5, Limita tion Act. If the defendant acquired knowledge of the ex pane decree on 6-4-1979 as asserted by them, it cannot be said that application under Order IX, Rule 13, C. P. C. was not within time. Even otherwise Section 5, Limitation Act does not require explanation of each day by mathematical calculation. The appellate Court also adopted the same reasoning and on ac count of discrepancy in the version given by the defendants in their application under Order IX, Rule 13, C. P. C. and in its statement, decided against defendant-Ap pellant.