TRIBENI DEVI Vs. CHATURBHUJ KHEMKA

JUDGEMENT

(1.) This appeal has been preferred under Order 43 Rule 1 (d) of the Code of Civil Procedure against the Order dated 9-5-1984 passed in Misc. Case No. 16 of 1982 by Smt. Rajendra Kumari, the then Additional Sub-Judge at Ranchi, whereby and whereunder the petition filed by the petitioners-appellants under Order IX Rule 13 C.P.C. has been dismissed.

(2.) One Babulal Khemka filed Title Suit No. 18 of 1972 against the petitioners-appellants and the respondents-opposite parties No. 2 to 26 as defendants for specific performance of a contract dated 22-12-1959 for sale of the suit property stated in the schedule of the plaint entered into between the original plaintiff Babulal Khemka and late Bala Bux Poddar and late Hanuman Bux Poddar. The case of the appellants in the petition under Order IX Rule 13 C.P.C. is that the petitioner No. 1 (a) to l(h) i.e. the appellants, although were residing at their respective addresses after their marriage before 1956 but their addresses were wrongly given of their father's house at Upper Bazar, Ranchi and accordingly the original plaintiff, late Babulal Khemka took steps for service of registered notice and summons on all the petitioners, although petitioner Nos. 1 (e) to l(h) were not available at Upper Bazar at that time. It is further alleged that in collusion with the postal peon the plaintiff obtained service on refusal although the petitioners had no knowledge about the suit. It was further alleged that the petitioner No. 1 (d) Dilip Kumar Poddar was a minor in the year 1972-73 and he was living under the care and guardianship of his mother, petitioner No. 1, Tribeni Devi, but the plaintiff knowingly suppressed the fact and shown him as a major one. Original plaintiff died on 29-6-1976 leaving behind the respondent No. 1 (a) to 1 (e), who were substituted in the suit but never as alleged appeared in the suit by filing any Vakalatnama through any lawyer. The suit in question i.e. Title Suit No. 18 of 1972 was decreed ex.pa.rte on 22-9-1980. On 29-9-1982 the petitioners came to know about the passing of the said ex parte decree against them and accordingly after inspection of the records filed application on that date under Order IX Rule 13 C.P.C. for setting aside the decree alongwith a petition under Section 5 of the Limitation Act. Opposite parties-respondents had filed objection refuting all the allegations brought in the petition under Order IX Rule 13 C.P.C. and after adducing of evidence by both the parties, the learned Additional Sub-Judge held that the petitioners could not prove that at the relevant time of service of notice the defendant Nos. 1 (e) to 1 (h) were not living at Upper Bazar and they being the sisters of other defendants, who had full knowledge of the suit cannot be held that the suit was decreed ex parte without the knowledge of the petitioners. Moreover, the petitioner No. 1, Tribeni Devi and her son Dilip Kumar Poddar reside at Upper Bazar itself.

(3.) The learned Court below believed the evidence of postal peon, although he stated that refusal was made in his presence by 4-5 women but he could not identify individually as to whom of them were defendant number what in the suit. Further learned Court below held that the petitioners failed to prove the delay in filing of the petition under Order IX Rule 13 C.P.C. as according to them, they gathered knowledge from the written statement filed in Title Suit No. 150 of 1969 in the Court of Munsif. It was further held that the appellants-petitioners failed to prove sufficient cause of their non-appearance in the suit and as such there was no ground for setting aside the ex parte decree.