VISHNU KANT JHA Vs. DINESH JHA

JUDGEMENT

(1.) The present revision application is directed against the order dated 28-11-1987 passed by Sub-Judge III, Darbhanga, in Misc. Case No. 5/86 filed by opposite party No. 1 under O.IX R. 13 of the Civil P.C. (hereinafter referred to as 'the Code') whereby the ex parte judgement and decree dated 25-6-1977 and 12-7-1977 respectively have been set aside.

(2.) On 19-7-1969 a partition suit being P.S. No. 117/69 was filed in the Court of Sub-Judge, Darbhanga by the petitioner for a preliminary decree for partition claiming 1/3rd share in Schedule I and Schedule II properties and also for carving out a separate Patti with respect to the same by appointing Pleader Commissioner and, further, for delivery of separate possession over the same.

(3.) The petitioner is the plaintiff. The case of the petitioner is that after the institution of the suit summonses were issued to the defendants by the trial Court and after several warnings defendant No. 1, Pashupati Jha, now dead, grand-father of opposite party No. 1, appeared in the suit and filed his written statement. Similarly, defendant No. 2, now dead, full brother of defendant No. 1, also appeared and filed his written statement and both contested the suit jointly. Summonses were also issued to opposite party No. 1, who was defendant No. 11, and finally it was served on him through his address in the Military service where he was then posted. The further case of the petitioner is that opposite party No. 1 had full knowledge and notices of the date of hearing of the suit at all stages. It is further alleged that later the other defendants, who had appeared and also filed their written statements, withdrew from the contest and allowed the suit to be decided ex parte.