PHILIP KHARIA @ PHALIPS KHARIA Vs. KAMIL KHARIA

JUDGEMENT

(1.) Heard the counsel appearing on behalf of the revisionists. The instant revision is preferred challenging the order dated 16.06.2010 in Miscellaneous Case No. 15 of 2007 passed by Munsif, Gumla arising out of Title Suit No. 50 of 2002 allowing the application under Order 9 Rule 13 C.P.C. setting aside die ex-parte judgment and decree dated 10.09.2004 and 20.09.2004 respectively on a cost of Rs. 2,500/-.

(2.) That one Title Suit No. 50 of 2002 was instituted by the petitioner for declaration of right, title and interest over the land in question situated at village Karichuwa, P.S.- Kamdara and also for declaring adoption executed, vide deed dated 18.06.1971 by Johan Naro in favour of one Kamil Kharia- opposite party. According to the petitioners, the respondent failed to appear despite notice. On refusal of the notice, the matter proceeded ex-parte. Only Performa defendant no. 3 appeared and filed his written statement and the matter was finally decided, vide judgment and decree dated 10.09.2004 and 20.09.2004 respectively. The Miscellaneous Case No. 15 of 2007 was instituted with the prayer to set aside the ex-parte judgment and decree on 13.08.2007 (A copy of the application is annexed as Annexure- 1 to the writ petition). The petitioners contested the application under Order 9 Rule 13 C.P.C. and filed his objection vide Annexure-2 to the writ petition. The Deputy Commissioner, Performa opposite party was also arrayed in the miscellaneous case and show cause was filed on behalf of the Deputy Commissioner as well. The petitioners' contention was supported by the Deputy Commissioner and the assertion on behalf of the objectors was that the respondent-defendant deliberately failed to make his appearance and the miscellaneous case was instituted after a long lapse of three years and, therefore, cannot be allowed. Besides, submission is that the respondent has admitted that he has received notice and, therefore, he cannot be permitted to retract his statement before the court, from the assertion made in his application. Summons were duly served, but the respondent-defendant deliberately did not appear. The Deputy Commissioner also filed his objection that the restoration application is not maintainable after a long lapse of time and thus, the application under Order 9 Rule 13 C.P.C. was contested tooth and nail. The court below allowed the application on a cost of Rs. 2,500/- by a lengthy well reasoned order.

(3.) Counsel appearing on behalf of the petitioners also cited a decision of the Apex Court in the case of Mahabir Singh Vs. Subhash in Civil Appeal No. 4881 of 2007 judgment dated 12.10.2007. In the said case, the Apex Court concluded that the applicant who approached the court under Order 9 Rule 13 C.P.C. had acquired knowledge one and half year before passing of ex-parte decree and the operation starts from the date of knowledge of decree and, therefore, treated the application to be time barred.