SHIVCHARAN LAL Vs. PAPPU KHAN

JUDGEMENT

(1.) This writ petition has been filed by the petitioners-plaintiffs (for short, 'the plaintiffs') against the order dated 25.9.2019 passed by Addl. District Judge, Bari (for short, 'the Appellate Court') in Civil Misc. Appeal No. 6/2016, whereby the appellate Court allowed the appeal filed by the respondent-defendant no.1 Pappu Khan and set-aside the order dated 18.5.2016 passed by Gram Nyayalaya, Basedi, Distt. Dholpur.

(2.) Facts of the case are that the plaintiffs filed a suit against the defendants for permanent injunction and removal of encroachment in the Court of Civil Judge, Bari (for short, 'the trial court'), where the defendants did not appear and resultantly ex-parte proceedings were drawn against them on 19.10.2000.Subsequently the defendants filed an application under Order 9 Rule 7 CPC, which was allowed and ex-parte proceedings were set-aside vide order dated 15.10.2003. Thereafter the defendants filed their written statement and the trial court framed the issues. Thereafter the trial court recorded the evidence of the plaintiffs on 17.11.2010. In the meantime, on 26.10.2010, District Judge, Dholpur directed to transfer the case alongwith other cases to Gram Nyayalaya, Basedi. Accordingly, on 15.11.2010, the case was transferred from the Court of Civil Judge, Bari to Gram Nyayalaya, Basedi and on the next date i.e. on 18.11.2010, the case was listed in the said court, but on that date, neither the plaintiffs nor their advocate, nor defendants and nor their advocate appeared before Gram Nyayalaya, Basedi. On that day, Gram Nyayalaya posted the matter for 23.12.2010 for passing the appropriate order. On 23.12.2010, plaintiffs' advocate was present before Gram Nyayalaya, Basedi, but the defendants or their advocate remained absent, as such the matter was adjourned to 20.1.2011. On 20.1.2011, again neither defendants nor their advocate was present before Gram Nyayalaya, Basedi, therefore, ex-parte proceedings were drawn against them and vide judgment dated 10.2.2011, suit was partly decreed ex-parte. The defendants filed an application under Order 9 Rule 13 CPC for setting aside the said ex-parte judgment and decree dated 10.2.2011. An application under Section 5 of the Limitation Act was also filed for condonation of delay. The plaintiffs filed reply to the said applications. Gram Nyayalaya, Basedi vide its order dated 18.5.2016 dismissed the application under Order 9 Rule 13 CPC. The defendant no.1 filed an appeal before the Appellate Court. The Appellate Court vide its judgment dated 25.9.2019 allowed the appeal and set-aside the order dated 18.5.2016 passed by Gram Nyayalaya, Basedi subject to payment of cost of Rs. 3000/-. Hence, this writ petition.

(3.) Learned counsel for the plaintiffs submits that after initiation of ex-parte proceedings, the matter was sent for settlement in Lok Adalat. The notices of Lok Adalat were sent by Gram Nyayalaya, Basedi to the plaintiffs and the defendants and they were served on both the parties, but the defendants did not appear before the Lok Adalat. In such circumstances, Gram Nyayalaya, Basedi rightly decreed the suit ex-parte vide judgment dated 10.2.2011. The defendants filed the application under Order 9 Rule 13 CPC, which came to be dismissed vide order dated 18.5.2016. However, on filing the appeal there against, the appeal has been allowed and the order dated 18.5.2016 passed by Gram Nyayalaya, Basedi has been set-aside, despite the fact that the cause for non appearance, as disclosed by the defendants, was not sufficient for setting aside ex-parte decree. He further submits that according to Section 24 CPC, District Judge can transfer cases from one court to another court by a common order and it is not necessary for the Court to issue summons / notices again to the respective parties in each and every case. Only a list of the transferred cases may be affixed in the court premises for information and that is sufficient notice. In the instant case, notice was affixed in the court premises and a copy of the notice was sent to Bar Association, Bari. However, the learned appellate court has committed material illegality while setting aside the order passed by Gram Nyayalaya, Basedi. On this count, the impugned judgment dated 25.9.2019 passed by the Appellate Court is liable to be quashed and set-aside.