UPENDRANATH DEY Vs. ANANTA KUMAR DEY

JUDGEMENT

(1.) Petitioner has assailed in this writ petition the legality of order dated 28.1.2008 passed by learned Civil Judge, (Junior Division), Jaleswar in Misc. Case No.3 of 2006 by which opposite party no.1?s application under Order 9 Rule 13 of the C.P.C. was allowed and ex parte decree passed in T.S. No.130 of 1991 by learne

(2.) Petitioner is the Plaintiff and opposite party No. 1 is the Defendant No. 1 in T.S. No. 130 of 1991. Petitioner has filed the suit for correction of M.S. ROR. Petitioner's case is that in response to notice opposite party No. 1 entered appearance through Sri B. Jena, Advocate and took time thrice to file written statement. However, as no written statement was filed by opposite party No. 1, ex parte decree was passed on 2.11.1992 in favour of the Petitioner. Pursuant to the decree Petitioner filed mutation cases bearing Misc. Case Nos. 47 and 48 of 1995 in which also opposite party No. 1 did not appear in spite of service of notice and M.S. ROR was corrected. Long after thirteen years, opposite party No. 1 filed application under Order 9 Rule 13 of the Code of Code of Civil Procedure accompanied by application under Section 5 of the Limitation Act. Petitioner filed objections against both the applications. In support of opposite party No. 1's assertions P.W.1 was examined and documents marked Exts.1 to 3 were admitted into evidence. It is averred in the writ petition that without affording any opportunity to the Petitioner to cross-examine P.W.1, the impugned order was passed erroneously holding that summons was not served on the opposite party No. 1 in the suit.

(3.) It was contended by the learned Counsel for the Petitioner that order sheet in T.S. No. 130 of 1991 reveals that opposite party No. 1 had entered appearance through Sri B. Jena, Advocate on 4.5.1992 and filed petitions for time to file written statement and for setting aside the order setting him ex parte. On 24.6.1992 also opposite party No. 1 had filed petition for time to file written statement which was allowed subject to payment of cost of Rs. 10/-. However, opposite party No. 1 neither paid cost nor took any step on 6.7.1992 and 28.7.1992 for which application dated 4.5.1992 to set aside the order setting opposite party No. 1 ex parte was rejected. Notice was issued to opposite party No. 1 in mutation cases also, but he did not participate in the proceeding before the Tahasildar. After long lapse of thirteen years, opposite party No. 1 filed application under Order 9 Rule 13 of the Code of Code of Civil Procedure on the ground that the Petitioner had not supplied correct address of opposite party No. 1 and committed fraud on the court in order to obtain ex parte decree and that opposite party No. 1 had no knowledge regarding the ex parte decree till he was told regarding the same by his lawyer appearing in C.S. No. 65 of 2003-1. Learned court below passed the impugned order without considering Petitioner's objections and without giving him opportunity to cross-examine opposite party No. 1's son who was examined as P.W.1. It was strenuously contended that learned court below had no basis to come to the finding that the opposite party No. 1 had no knowledge regarding the ex parte decree till filing of application under Order 9 Rule 13 of the Code of Code of Civil Procedure in the year 2006.