ASHRAF Vs. KARIM BUX

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for a declaration that an ex parte decree dated 20 February 1942, obtained by the defendant in Suit No. 518 of 1941 of the Court of Munsif, Koil, Aligarh, was null and void.

(2.) The plaintiffs case was that under a permission obtained from the zamindar they had entered into possession of a plot of land and built a double storeyed house on it in November 1941, but that after the house had been constructed the defendant filed the suit referred to above for possession over the land necessarily involving a demolition of the building already erected by the plaintiffs. They further averred that when this suit was filed, they were not in their village, called Kharai, but that one of them was away in Delhi and the other of them away at Mussoorie; that in spite of this the defendant had wrongly got the summons of the suit issued to them by their village address, with the consequence that they were wholly unaware of the suit, and it was in that state of affairs that the defendant induced the Court to pass the ex parte decree in question. They further alleged that when on 3 June 1942, notices in the execution proceedings were Issued to them, they first came to know about the suit and the decree. On 3 July 1942, the plaintiffs applied for the setting aside of the decree under Order 9, Rule 18, Civil P.C., filing an affidavit on the point of their absence from the village, in answer to which a counter-affidavit was put in by the defendant. The learned Munsif, on 15 August 1942, dismissed this application, and an appeal against the order was also dismissed on 6 March 1948. It may be mentioned that besides these affidavits no other evidence was produced by either party at that stage.

(3.) Both the learned Munsif and the appellate Court in the said miscellaneous proceedings found, as pointed out by the Courts below in the present case, that the plaintiffs had absented themselves from the Court in spite of their knowledge of the suit. It may also be mentioned that in those proceedings no question had been raised with regard to the merits of the defendant's Suit no. 518 of 1941, much less that it was based from the beginning to the end on a fraudulent and imaginary foundation. The orders of the two Courts in those proceedings were thus confined only to the question of knowledge of the plain-tiffs about the Suit and not, strictly speaking, to the non-service of the summonses on them as due to any fraud practised by the defendant.