RAMSWAROOP Vs. NARAYAN SINGH

JUDGEMENT

(1.) THE revisionist is the plaintiff and he has filed a suit for declaration and permanent injunction against the respondents in respect of suit property described in para one of the plaint. The plaintiff and the father of respondent No.1 are real brothers. The respondent No.2 is the mother of respondent No.1. The name of father of respondent No.1 is Ishwariya. The plaintiff and respondent No.1's father Ishwariya had 1/3rd share each in the suit property. The remaining 1/3 rd share in the suit property was held by respondent No.2. As per the case of the revisionist being the plaintiff in the suit, the respondent No.1's father Ishwariya had executed a will dated 15th August, 1979 whereby he had bequeathed his 1/3rd share in the suit property in his favour. However, respondent No.1 was in possession of 1/3rd share in regard to which will was allegedly made by his father in favour of the plaintiff. Since the plaintiff claimed the will in regard to 1/3rd share allegedly executed by Ishwariya in his favour, he filed a civil suit for declaration and permanent injunction against respondent No.1 and also impleaded his mother and two sisters as party defendants in the said suit. Except State of Madhya Pradesh being respondent No.5 herein, all other respondents were proceeded ex-parte in the suit by the trial Court on 20 th July, 2000 and thereafter evidence was led by the revisionist/plaintiff by way of his affidavit filed on 2nd May, 2005 and acting on his affidavit, the suit was decreed by the trial Court vide judgment and decree dated 29th July, 2005 and consequently the revisionist was held owner in regard to 1/3 rd share in the suit property bequeathed in his favour under the will of respondent No.1's father. The respondent No.1 thereafter filed an application under Order 9 Rule 13 CPC for setting aside of ex-parte judgment and decree dated 29th July, 2005 against him and that application filed by respondent No.1 was dismissed by the trial Court vide order dated 4 th August, 2011, against which respondent No.1 preferred a misc. appeal being M.A.No.9/11 which was allowed by the appellate Court vide impugned order dated 31st October, 2011 and the case was remanded back to the trial Court for fresh decision of the suit after giving an opportunity to defend the suit to respondent No.1. It is aggrieved by this order of appellate Court, the revisionist has preferred the present revision petition on which detailed arguments have been heard.

(2.) THE learned counsel appearing on behalf of the revisionist has argued that the application under Order 9 Rule 13 CPC filed by respondent No.1 for setting aside of ex-parte judgment and decree dated 29th July, 2005 was barred by time and could not have been allowed by the appellate Court. The learned counsel has further argued that since service of notice of suit was accepted on behalf of respondent No.1 by his brother Keshav, the appellate Court, according to him, went wrong in holding that there was no proper service of notice of suit to respondent No.1 as ground for setting aside of judgment and decree in favour of the revisionist. Per contra, the learned counsel for respondent No.1 has argued that the respondent No.1 acquired knowledge of ex-parte decree and judgment against him for the first time on 24th April, 2009 when upon making enquiry from the reader, he got copy of mutation order dated 31st March, 2006. The learned counsel has further argued that Keshav on whom service of notice of suit is shown on behalf of respondent No.1 is in no way related to respondent No.1 and according to him, there was no service of notice of suit on his client.