VISHWANATH JHA Vs. DEPUTY DIRECTOR CENSUS

JUDGEMENT

(1.) 1. In this Civil revision application, the plaintiff -petitioner has challenged the order dated 12.7.1995 passed by the Subordinate Judge I, Muzaffarpur, in Misc. Case No. 42 of 1993, whereby he has set aside the exparte decree dated 15.5.1993 passed in Money Suit No. 56 of 1992.

(2.) The plaintiff -petitioner field Money Suit No. 56 of 1992 seeking a decree for realization of a sum of Rs. 1,85,756.50 together with interest pendent lite and future being the amount of arrears of rent payable by the defendants for use and occupation of the premises belonging to the plaintiff. The petitioner's case is that in the aforementioned suit an application for attachment before judgment was filed and the Court below after hearing the petitioner passed an order and issued a notice of conditional attachment calling upon the defendants to furnish security bond of Rs. 1,50,000 within tenures from the date of service of notice which was issued on 23.9.1992. The petitioner's further case is that on 1.10.1992 the defendant Nos. 1 and 2 appeared in Court through one Maheshwar Prasad Singh, an employee of the Directorate of Census, who filed a petition to stay further proceeding as Civil revision No. 1344 of 1992 was filed against the order of attachment. The petitioner's case is that on 16.3.1993 the order passed by this Court in Civil Revision was produced by the petitioner in the Court below to show that the Civil revision application was disposed of and the High Court did not interfere with the order. Even after the disposal of the revision application, the defendant failed to appear in the Court below and the Court below after waiting for long time ultimately proceeded with the suit and passed exparte decree on 15.5.1993. When the petitioner levied Execution Case No. 9 of 1993, the defendant -opposite parties became active and filed Misc. Case No. 42 of 1993 for setting aside the exparte decree. The defendant -opposite parties in their application for setting aside the ex parte decree stated, inter alia, that they had engaged Sri Parshuram Jha, Advocate to appear and conduct the case and after revision application was disposed of, opposite parties got in touch with the said advocate who vide letter dated 12.3.1993 informed that he will send the bond for execution which had to be filed in the Money Suit. Opposite parties further stated that subsequently vide letter dated 16.3.1993 the Counsel informed the opposite parties that he had filed a petition for time on 16.3.1993 and the next date fixed in the money suit was 23.4.1993. On 22.4.1993 Sri Maheshwar Prasad, Assistant Director, an officer in the office of the opposite parties was deputed to go to Muzaffarpur to find out the progress of the case. The said Maheshwar Prasad contacted the lawyer on 22.4.1993 and on 23.4.1993 the lawyer informed that he had not been able to get the date in the - matter and he would inform the opposite parties about the same later on. In is stated that when nothing was heard from the advocate, the opposite parties sent one letter dated 7.5.1993 requesting him to let him know about the latest position of the case. Again on 13.5.1993 the opposite party deputed an officer from his office to find out about the present position of the case but the conducting advocate again told that he will inform the next date by sending letter. The further case of the opposite parties is that time to time officer of the Directorate was deputed to remain in touch with Sri Parsuram Jha, advocate in the matter of furnishing security bond and getting the draft of the written statement prepared from him. On each occasion Counsel kept the opposite parties in dark and the opposite parties were not apprised about the present position of the case and ultimately it was transpired that the suit was decreed ex parte on 15.5.1993. The plaintiff -petitioner opposed the application for setting aside the exparte decree by filing rejoinder. Learned Court below after hearing the parties and after considering the evidence, both oral and documentary, came to the conclusion that the defendants were prevented by sufficient cause for not appearing in the suit when it was heard ex parte and accordingly the Court below set aside the ex parte. Hence this revision application.

(3.) Mr. Narmadeshwar Jha, learned Counsel appearing for the plaintiff -petitioner assailed the impugned order as being illegal and contrary to the facts and evidence on record. Learned Counsel submitted that the Court below exceeded its jurisdiction in relying upon the so -called communication stated to be that of one lawyer of Muzaffarpur who had no concern with the suit in question. Learned Counsel further submitted that the Court below has made out a third case for the defendant while recording finding that the summons were not duly served when that was not the case of the defendant -opposite parties. Learned Counsel lastly submitted that the Court below failed to consider the proviso to Order IX, Rule 13 of the Code of Civil Procedure, inasmuch as admittedly the defendants had knowledge about the suit and, therefore, mere irregularity in service of summons could not be a ground for setting aside the exparte decree. On the other hand, Shri Ajay Kumar Tripathi, learned Standing Counsel, Central Government appearing for the opposite parties submitted that the Court below recorded a finding of fact after considering the evidence of the witnesses examined on behalf of the parties and, therefore, this Court in exercise of revisional jurisdiction should not interfere with the impugned order by which the exparte decree has been set aside. Learned Counsel further submitted that the Court below has come to a correct finding that it was because of the laches on the part of the lawyer engaged by the defendants they could not be informed about the correct position of the suit which resulted in passing of the ex parte decree.