AJIT KUMAR MITRA Vs. PURI MUNICIPALITY

JUDGEMENT

(1.) THE short question involved in this case is whether the application filed by the petitioner under Order 9, Rule 13, C. P. C., was rightly rejected by the Courts below as being barred by limitation. Puri Municipality, the opposite party No. 1, filed Money Suit No. 82 of 1971 against the petitioner and one Ranjit Kumar Mitra who, as it appears now, was dead since 25.11.1945, for realisation of Rs. 501/ - towards holding tax. In the said suit notice sent to Ranjit Kumar Mitra, was returned back with report that he is dead. Notice on the petitioner could not be served due to his absence and a copy of the notice was hung up on the premises. The suit was decreed ex parte on 17. 3. 1972. On 8. 11. 1978 the petitioner filed a petition under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree and for restoration of the suit alleging inter alia that he was not aware of the filing of the suit or its disposal till 6. 11.1978 when he came to know about it on inspection of records. He further alleged that while he is a resident of Mahendra Mitra Road (Hoogli), West Bengal, summons in the suit were sent to Kundhaibeha Sahi, Puri. The decree was challenged as a void one having been obtained on suppression pf summons as well as being against a dead person.

(2.) NO objection was filed by the opposite party to the aforesaid application. The opposite party No. 2 was impleaded in the proceeding on his own application since he purchased the property in the execution case arising out of the suit. Both the Courts below rejected the petition under Order 9, Rule 13, C. P. C. on the ground of being barred by limitation.

(3.) FROM the aforesaid discussion it is clear that both the Courts below committed error of jurisdiction in rejecting the averments made in the application under Order 9, Rule 13, C. P. C. filed by the petitioner without giving him an opportunity to adduce evidence, in support of the same. The civil revision is therefore allowed and the orders of the Courts below rejecting the application under Order 9, Rule 13, C. P. C. are set aside. The case is remanded to the trial Court for fresh disposal after giving opportunity to the parties to adduce evidence within three months. Both parties are directed to appear before the trial Court on 23, 8.1984 to receive further directions. Both parties will bear their own costs of this proceeding.