THAKURDEEN BANI Vs. BHAILAL GUPTA

JUDGEMENT

(1.) .This revision has been preferred by plaintiffs against the impugned order dated 5 -7 -2003 passed by the Court below allowing the application filed under Order 9, Rule 13, Civil Procedure Code but dismissing the suit as abated. A civil suit for declaration and injunction was filed by plaintiffs, who are applicants No. 1 to 5 in this revision. The suit was filed against Ghurau and was decreed ex -parte on 9 -1 -1997. An application for setting aside the ex -parte decree was filed by the respondent -Bhailal Gupta, who is the son of the deceased/defendant. The learned Court below allowed the application under Order 9, Rule 13, Civil Procedure Code but dismissed the suit as abated by the impugned order. During the arguments it was contended by the learned counsel for the parties that, against that part of impugned order by which the suit of plaintiffs was dismissed as abated, the plaintiffs preferred an appeal before the First Additional District Judge, Sidhi, which was allowed and it has been directed to the trial Court that while deciding the application under Order 9, Rule 13, Civil Procedure Code it was beyond its competence to hold that the suit was abated. The appellate Court has thus remitted the case back to the trial Court to redecide the point of abatement.

(2.) IT has been contended by learned counsel for the applicants that the Courts below erred in law in setting aside the ex -parte decree, as the respondent has utterly failed to demonstrate sufficient cause for his non -appearance. The other contention is that ex -parte decree was passed against the father of the respondent and since no application has been submitted on his behalf, the respondent being his son was not entitled to submit any application for setting aside the ex -parte decree. Lastly, it has been contended that while dealing the application for setting aside the ex -parte decree, the Court below was not having any jurisdiction to dismiss the suit as abated. Learned counsel for the respondent has argued in support of the impugned order. The ex -parte decree was passed on 9 -1 -1997. The suit was instituted by present applicants against Ghurau, who is the father of the present respondent. On going through the impugned order it is gathered that defendant Ghurau died in the year 1990 and this fact was known to applicant No. 2, Jamuna Prasad, who was one of the plaintiff and was examined as non -applicant witness No. 2 in the Court below. The Court below after marshalling the evidence came to hold that since this fact has been admitted by Jamuna Prasad that defendant Ghurau died and present respondent Bhailal is his heir, therefore, according to the Court below, since the present respondent was not arrayed as defendant, though original defendant Ghurau died, the present application for setting aside the ex -parte decree by respondent Bhailal is maintainable and this would amount to "sufficient cause" for his non -appearance. According to me, this finding of the trial Court cannot be said to be an incorrect approach of the law. When the defendant Ghurau died, it was for the plaintiffs to file appropriate application for substitution of his legal representatives, having not done so, the respondent can, under all the corners of law, file an application for setting aside the ex -parte decree. There is a clear finding of the Court below that respondent is a resident of village - Dhumma and his father, who was the defendant in the suit, was residing in village Sonbarsa and, therefore, it cannot be said that respondent was aware of the pendency of the suit. The ex -parte decree passed in favour of plaintiffs, is enforced by them against the present respondent, therefore, according to me, he can very well file an application for setting aside the ex -parte decree. In the case of Raghunath Tambe x M.P. Electricity Board, Jabalpur and others, : 1997 (2) MPLJ 423 this Court while dealing with the matter in regard to setting aside of ex parte decree, held that a person who is not a party to the main proceedings and if the decree has been obtained by fraud and collusion, that party may file an application under Order 9 Rule 13, Civil Procedure Code. In the present case, since the ex parte decree is being enforced against the present respondent, he can file an application for setting aside the ex parte decree.

(3.) ON going through the impugned order it is revealed that on 29 -3 -1996, the counsel who was appearing for defendant pleaded no instructions as a result of which the defendant was proceeded ex parte and ultimately, an ex parte decree was passed. This Court in the case of Mahesh Singh and others vs. Sewaram, : 2000(1) MPLJ 407 : 2000 (1) JLJ 373 by placing reliance on two decisions of the Apex Court Tulsiram vs. Ramchand, : AIR 1993 SC 1182 and Malkiat Singh vs. Joginder Singh, : 1998 (2) SCC 206 held that if counsel of a party pleads no instructions, a notice must go to that party. Since no notice was sent, for this reason also the ex parte decree cannot be allowed to stand. On the basis of the aforesaid discussion, in my opinion, the learned Court below did not commit any error in setting aside the ex parte decree, and that part of the impugned order is hereby affirmed. However, the Court below, while dealing with and deciding the application filed under Order 9, Rule 13, Civil Procedure Code by present respondent held that the suit has abated and accordingly, dismissed the suit. To me, the procedure so adopted by the Court below is wholly unwarranted under the law. The Court below should have confined itself to the merit of the application filed under Order 9, Rule 13, Civil Procedure Code. While deciding such application the Court was not having any jurisdiction to hold that the suit has abated and that too, without hearing the parties on this question.