MUNI DEVI Vs. RAJDHANI DEVI

JUDGEMENT

(1.) This Civil Revision has been filed by heirs of defendant No. 1 & 2 against the order dated 23-6-2009 passed by Addi-tional District Judge, Fast Track Court No. IX, Giridih in Miscellaneous Appeal No. 13 of 2006 whereby and whereunder he dis-missed the appeal and affirmed the order of Munsif in Miscellaneous Case No. 8 of 2001 dated 4-7-2006.

(2.) The fact of the case sans unnecessary particulars is that the plaintiff/respondent/ O.P. No. 1 filed Title suit No. 51 of 1989 for declaration of his title against the original defendants 1 to 6 and recovery of posses-sion of the land pertaining to Khata No. 10, Plot No. 2247 area 0.34 dismals and land of Khata No. 17, Plot No. 2248 area 30 dismals and Plot No. 2240 area 19 dismals of village Jamtara, P.S.-Dumri, District- Giridih. It ap-pears that in the said suit after receiving no-tice, defendant No. 1 and 2 appeared on 19-2-1990 and seek adjournment for filing writ-ten statement. It then appears that in spite of adjournment, defendant Nos. 1 and 2 did not file written statement, accordingly the learned Court below proceeded ex parte against them under Order VIII, Rule 10 and an ex parte decree passed against them on 21-4-1998. It then appears that an Execution. case filed for execution of the aforesaid de-cree and in that execution case petitioners/ appellants were impleaded because the origi-nal defendant No. 1 died on 6-9-1998. It fur-ther appears that when petitioners/appellants avoided notice of execution case No. 11 of 1998, the Court ordered for publication of notice in the Newspaper, accordingly the no-tice published in the daily Newspaper. It fur-ther appears that thereafter the O.P. No. 1/ respondent/plaintiff put in possession of the suit lands. Thereafter petitioners/appellants filed miscellaneous case No. 8 of 2001 for setting aside the ex parte decree against the original defendant Nos. 1 and 2 as per the provisions contained under Order IX, Rule 13. It further appears that learned munsif, Giridih vide order dated 4-7-2006 after con-sidering the facts of the case rejected the said application. Against the aforesaid order of Munsif, Miscellaneous appeal No. 13 of 2006 filed, which was also dismissed by Addi-tional District Judge, FTC-IX, Giridih con-sidering the facts of the case as well by hold-ing that against an order passed under the provisions of Order VIII, Rule 10, an appli-cation under Order IX, Rule 13 is not main-tainable. Aforesaid order impugned in this revision application.

(3.) It is submitted by Sri V. Shivnath, Se-nior Advocate that the learned appellate Court had committed illegality by holding that the appeal is not maintainable because the original miscellaneous application under Order IX, Rule 13 is not maintainable against an order passed under the provisions of Or-der VIII, Rule 10. It is submitted that it has been held by Hon'ble Kerala High Court in A.K.R Haridas v. A. Madhvi Amma, 1988 AIR(Ker) 304 that any decree passed under the provisions of Order VIII, Rule 10 for not filing written statement is an ex parte decree and therefore an application under Order IX, Rule 13 is maintainable. It is further submit-ted that defendant No. 1 was suffering from tuberculosis, thus she was not able to attend Court till 14-1-1995 when she died. It is fur-ther submitted that defendant No. 2 was men-tally ill and he is living life of vagabond and because of that he could not contested title suit. It is submitted that the petitioners had shown sufficient cause which prevented de-fendant Nos. 1 and 2 from contesting the case by filing written statement, but the Courts below had wrongly rejected the prayer of petitioners for setting aside the ex parte de-cree. Accordingly, it is submitted that the impugned order cannot be sustained.