DULAL CHANDRA CHATTOPADHYAY Vs. BASUDEB BHATTACHARJEE

JUDGEMENT

(1.) The instant revision application preferred at the instance of the petitioner/plaintiff is directed against order No. 189 dated 26.11.99 passed by Shri N.C. Chakraborty the learned Civil Judge (Senior Division) 1st Court, Alipore in Miscellaneous case No. 29 of 1996. By the impugned order the learned Court below allowed the Miscellaneous case arising out of the application under Order 9 Rule 13 of the Code of Civil Procedure filed by defendant No. 27 presently O.P. No. 1 as applicant for setting aside the ex-parte decree passed on 8.12.95 in Title Suit No. 197 of 1985 subject to payment of cost of Rs. 500/- to the O.Ps in the said Miscellaneous case.

(2.) The facts leading to the instant revision may briefly be stated thus. The present petitioner/plaintiff filed Title Suit No. 197 of 1985 in the Court of the learned Assistant District Judge (now designed as Civil Judge Senior Division), 1st Court, Alipore and the suit was decreed in preliminary form on contest with cost against defendant Nos. 18 to 20 and 22 and without cost against defendant No. 21 and ex-parte without cost against the other defendants including defendant No. 27 presently O.P. No. 1 on 13.8.91. A Commissioner for partition was appointed and he submitted his report whereupon the suit was decreed finally on 8.12.95. Present O.P. No. 1 who was defendant No. 27 filed an application under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure on 16.5.96 for setting aside the ex-parte decree and the same was registered a Miscellaneous case No. 29 of 1996. In the said application it was alleged by present O.P. No. 1 who was the applicant in the said Miscellaneous case that on 13.5.96 he went to the suit property at Hridaypur and came to learn that some persons went to the suit property for the purpose of investigation. He suspected that some clandestine operation was going on with regard to the suit property at the instance of the plaintiff. On 15.5.96 he came to learn about the suit being Title Suit No. 197 of 1985 and also about Title Suit Execution case No. 4 of 1996. It was further averred by the present O.P. No. 1 in the said application that no summon was served on him and his address as given in the plaint was Haridhaypur, Hridaypur Station (West), P.O. Hridaypur P.S. Barasat. The specific averment made by him is that he has been residing at 10, Rajen Banerjee Road, P.S. Behala, Calcutta-34 for more than 20 years and this is his real address. Further case of the present O.P. No. 1 as made out in the said application is that the plaintiff gave his wrong address and suppressed the service of summons upon him by practising fraud as a result of which he never had any knowledge about the said suit. He came to know about the said suit on 15.5.96 after making enquiry through the advocate concerned and if he would have been served with any summons or notice or if he would have knowledge of the above aforesaid suit he could have appeared in the suit for contesting the same. Under the above circumstances the present O.P. No. 1 who was the applicant in the said Miscellaneous case alleged that he was prevented by sufficient cause from appearing at the time of hearing of the suit as no summons was served on him and he suffered serious loss and injury because of the ex-parte decree passed against him and as such he filed the said application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree which was passed finally on 8.12.95 including the preliminary decree passed in the said suit.

(3.) The present petitioner/plaintiff who was O.P. No. 1 in the said Miscellaneous case contested the same by filing the written objection to the application under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure and denied the material allegations contained in the said application. As per his case there was no reason to file the said application. It was averred by him inter alia in the written objection that the defendant No. 27 used to reside and stay in the suit property and for that reason notices and summons in Title Suit No. 197 of 1985 were sent to him in the said address. It was further averred that defendant No. 27 was always aware of the existence of Title Suit No. 197 of 1985 since its institution and that the said application was filed by defendant No. 27 suppressing the material fact of due service of notices and summons intentionally only to harass the plaintiff.