KHETRO BHUMIJ @ KRISHNA CHANDRA Vs. GURUBARI BHUMIJANI

JUDGEMENT

(1.) The present Civil Revision application is filed against the judgment and order dated 28.7.2011 passed by the learned Sub-Judge-I Jamshedpur in Misc. Case No. 10 of 2003 whereby the application filed under Order IX, Rule 13 read with Section 151. C.P.C. by the opposite party No. 1 was ordered to be allowed and thereby the learned Court below was pleased to set aside the ex- parte order and decree passed in Title Suit No. 52 of 1999. The brief facts of the cases are as under :-

(2.) The learned counsel for the petitioner submitted that in the said Title Suit dated 7.8.1999 the Civil Court Peon has served the summons and the copy of the plaint in presence of the plaintiff and other witnesses but even thereafter defendant No. 1 i.e. Gurubari Bhumijani knowing fully well about the pendency of Title Suit No. 52 of 1999 in the Court below and thereafter the learned Court below had taken mode of service of summons through publication in local daily newspapers which was duly published on 19th February, 2010 fixing next date for appearance on 7.3.2010 and thereafter vide order dated 1.5.2010 the suit was fixed for ex-parte hearing because of non-appearance of the opposite party No. 1. It is further submitted that the suit proceeded ex-parte and vide order dated 20.11.2000 the same was decided in favour of the petitioner(plaintiff) and decree was signed on 30.11.2000. It is further submitted that on 19th June, 2003 the opposite party No. 1 herein filed petition under Order IX, Rule 13, C.P.C. for setting aside the ex- parte judgment and decree which was registered as Misc. Case No. 10 of 2003. It is submitted that parties have contested the Misc Case No. 10 of 2003 and have led oral and documentary evidence and thereafter vide order dated 28.7.2011 passed by the learned Sub-Judge-1 Jamshedpur in Misc. Case No. 10 of 2003 petition filed under Order IX, Rule 13, C.P.C. read with Section 151 of C.P.C. was allowed and judgment and decree dated 20.11.2000 passed in Title Suit No. 52 of 1999 has been set aside. Being aggrieved and dissatisfied with the judgment dated 28.7.2011 the present Civil Revision is preferred.

(3.) The learned counsel for the petitioner submitted that the judgment dated 28.7.2011 passed by the Court below is perverse and is against the materials on record. It is further submitted that there is sufficient materials to show that the opposite party No. 1 herein had knowledge of the pendency of the Title suit No. 52 of 1999 despite of the same, she refused to appear and to contest the said suit. It is further submitted that the learned Court below overlooked the deposition of the process server, who was examined on behalf of the petitioner. While referring the order passed by the Court below the learned counsel submitted that the learned Court below failed to appreciate the documentary evidence i.e. Exhibit-A. copy of summons issued upon defendant in Title Suit No. 52 of 1999, Exhibit-B. Certified copy of list of documents filed on behalf of second party in Misc. Case No. 1445 of 2002 and Exhibit-C. certified copy of show cause filed by the second party/petitioner herein in proceeding under Section 144 of Cr.P.C. being Misc. case No. 1445 of 2002. It is further submitted that the learned Court below has completely overlooked the admission made by the opposite party No. 1 in paragraph-15 of her cross-examination wherein she has admitted that she had knowledge of summons of Title suit No. 52 of 1999, but has taken no step for getting the certified copy of the decision. It is also submitted that the learned Court below failed to appreciate that the summons were duly served upon the opposite party No. 1 in compliance of provisions as laid down in C.P.C. The learned counsel for the petitioner lastly submitted that the learned Court below has committed grave error in law in touching merits of suit by saying that though adivasi lady has not inherited right and title in the property of her husband but as per customary law she has right to be maintained from her husband's property till her death. Therefore, according to the learned counsel, the judgment passed by the Court below is bad in law and liable to be set aside.