SANDHYA BAI SAHU Vs. SAURABH TIWARI

JUDGEMENT

(1.) This revision under Section 115 of the Code of Civil Procedure is directed against the order dated 16.08.2013 passed in Misc. Appeal No. 17/2011 by the II Additional District Judge, Mandla, by which the order dated 22.09.2009 passed in M.J.C. No. 8/2008 by the Civil Judge, Class-I, Mandla, has been affirmed. The facts giving rise to filing of this revision are that the non-applicants/plaintiffs filed a suit for eviction of the applicant in the Court of II Civil Judge, Class-II, Mandla. The summon of the said suit was issued to the applicant but since she was not present on the date of notice, ex parte proceedings were done and ex parte judgment and decree was passed against the applicant on 02.05.2006. The applicant could know about the ex parte judgment and decree only when the said judgment and decree was put for execution and immediately thereafter she filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside ex parte judgment and decree. She also filed an application for condonation of delay in filing the said application under Section 5 of the Limitation Act. The non-applicants/plaintiffs contested the application of the applicant stating that she was aware of the notice of the suit but deliberately she avoided to appear before the Court despite service of the notice and, therefore, rightly the ex parte proceedings were done by the Court below and ex parte judgment and decree was passed against her. It was further contended that the applicant was aware of the ex parte judgment and decree from day one but no action was taken by her to get the said judgment set aside.

(2.) Learned Civil Court recorded the statements of the witnesses and came to the conclusion that no bonafide reasons were shown by the applicant for delay in filing the application under Order 9 Rule 13 of the Code of Civil Procedure and holding as such, the said application was rejected, as a consequence the application under Order 9 Rule 13 of the Code of Civil Procedure was also dismissed. The applicant preferred a miscellaneous appeal against the said order of the Court before the lower Appellate Court and since the appeal has also been dismissed, this revision is required to be filed.

(3.) It is contended by learned Counsel for the applicant that since evidence was adduced to the effect that the notice of the suit was not served on the applicant in appropriate manner, therefore, ex parte proceedings could not have been done against her but these aspects have not been looked into by the Court below and erroneously application submitted by the applicant for condonation of delay in filing the application for setting aside ex parte judgment and decree was rejected. It is, thus, contended that the conduct of the non-applicants/plaintiffs is writ large as they are not appearing before this Court even after service of notice of this revision and as such it was not rightly held that the application for setting aside ex parte judgment and decree was not made bonafidely.