MAHESH KUMAR JAIN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioner, who claims that he is the legal heir and successor of late Narendra Kumar Jain who was defendant no. 1 in Title Suit No. 103 of 1989, is aggrieved of order dated 25.11.2014 passed in Misc. Appeal No. 02 of 2013 by which the application under Section 5 of the Limitation Act for condoning the delay in filing the appeal has been dismissed and the order passed in Misc. Case No. 17 of 2012 has been affirmed.

(2.) Title Suit No. 103 of 1989 was instituted for a decree for declaration of the plaintiff's right, title and interest over the suit properties. The suit in absence of the defendants proceeded exparte and decreed vide judgment dated 27.06.1991; during pendency of the suit defendant nos. 2 and 3 were deleted. The petitioner asserts that during the proceeding under Section 144 Cr.P.C which was registered as Misc. Case No. 793 of 2012 he came to know about the judgment and decree in the suit through one Dinesh Khowal on 10.05.2012. Thereafter, he filed an application for setting-aside the exparte judgment and decree passed in Title Suit No. 103 of 1989 which was accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay of 7675 days. This application has been registered as Misc. Case No. 17 of 2012. By an order dated 08.03.2013 the trial Judge has dismissed this miscellaneous case. Aggrieved, the petitioner approached the appellate Court in Misc. Appeal No. 02 of 2013. Before the appellate Court, the respondent who was plaintiff in the suit raised objections on maintainability of the appeal on two counts namely, (i) against dismissal of the application under Section 5 of the Limitation Act an appeal under Order XLIII Rule 1(d) CPC shall not lie and (ii) the appeal at the instance of the petitioner who was not a party to the suit is not maintainable. Both the objections have been rejected by the appellate Court. Against the findings recorded by the appellate Court on the aforesaid two issues, the respondent has not preferred any appeal. However, Misc. Case No. 02 of 2013 has been dismissed primarily on the ground that the petitioner has failed to disclose parentage of the said Dinesh Khowal and how he is connected to Misc. Case No. 793 of 2012. The application under Order XLI Rule 27 CPC filed by the petitioner for examining witnesses has also been dismissed by the appellate Court. Aggrieved, the petitioner has approached this Court.

(3.) In the first place it needs to be recorded that neither in the exparte order dated 27.06.1991 passed in Title Suit No. 103 of 1989, nor in order dated 08.03.2013 passed in Misc. Case No. 17 of 2012, the court has recorded the date on which the defendant no.1 was duly served notice in the suit. The appellate Court has also failed to record a finding on proper service of notice upon defendant no.1 in Title Suit No. 103 of 1989. Order IX Rule 13 CPC provides that a defendant may apply to the Court which has passed the exparte decree for setting-aside the decree on the ground that summons was not duly served or that he was prevented by any sufficient cause from appearing in the suit. The petitioner has taken a plea that his father who died in the year 1999 was never served summons in the suit. For asserting his stand that summons was not served upon his father, in law, the petitioner is entitled to lead oral evidence by examining witnesses. This opportunity was not granted to the petitioner by the Court of first instance and the appellate Court has rejected his application under Order XLI Rule 27 CPC. Apparently, the procedure adopted by both the courts was erroneous which has resulted in dismissal of the application/appeal filed by the petitioner. Order XLI Rule 27 CPC confers wide powers upon the appellate Court to permit a party to lead additional evidence, particularly in a case where an evidence which should have been taken on record has been improperly refused by the court. Under clause (b) of Rule 27 to order XLI CPC the appellate Court can admit such additional evidence or examine a witness which would enable the Court to render a just decision in the case. Without examining his witness the petitioner could not have established his case that his father was not served summons in Title Suit No. 103 of 1989.