Patna High Court
Ahmadi Khatoon And Anr. vs Mohammad Taslim And Ors. on 19 August, 2004
Equivalent citations: 2004(3)BLJR1679
JUDGMENT R.N. Prasad, J.
1. Both the cases arise out of the order dated 23.12,2003 passed in Misc. Case Nos. 11/2003 and 12/2003, whereby the miscellaneous cases were dismissed on the ground that Title Suit No. 116/89 was decreed on 9.5.2003 on contest and, as such, the Court has no jurisdiction to set aside such decree. If the petitioners were aggrieved by the judgment, and decree passed in Title Suit No. 116/89 they could have filed an appeal against the said judgment and decree.
2. The relevant facts of the case are that Title Suit No. 116/89 was filed by the plaintiffs-opposite party for partition of their share in the joint family property, in which the mother of the petitioners was defendant No. 1, who died during pendency of the suit and, as such, the petitioners were substituted. The petitioners in C.R. No. 256/2004 appeared and also participated in the suit till framing of the issues and also filed an application for appointment of Pleader Commissioner, which was rejected. Thereafter, they left pairvi in the case. The petitioners in C.R. No. 127/2004 did not appear in the suit. The Court in such a situation fixed date for ex parte hearing and decreed the suit on 9.5.2003. The petitioners of C.R No. 127/2004 filed Misc. Case No. 12/2003 and the petitioners in C.R No. 256/2004 filed Misc. Case No. 11/2003 for setting aside the ex parte decree. The said miscellaneous cases have been dismissed by order dated 23.12.2003, as indicated above, on the ground that they are not-maintainable. Thus, the petitioners have filed the civil revision petitions for setting aside the order passed in the miscellaneous cases.
3. Since both the revisions arise out of same order notice was issued in C.R. No. 127/2004. Notices were served on the opposite party, Mr. Pushkar Narain Shahi appears on behalf of the plaintiff-opposite party No. 1 in both the cases and the rest did not appear in spite of the service of the notice.
4. The submission of the learned counsel for the petitioners is that the petitioners in C.R No. 127/2004, did not appear in the suit. The petitioners in C.R No. 256/2004 appeared in the suit and also participated till the framing of the issues and also filed a petition for appointment of Pleader Commissioner, which was rejected. However, thereafter they also left pairvi in the suit and, as such, the suit was decreed ex parte in the absence of the petitioners and, as such, the miscellaneous cases levied under Order 9 Rule 13, CPC are maintainable. The Court below was wrongly come to the conclusion that it was a contested decree and, as such, it has no jurisdiction to set aside such decree. If at all the petitioners were aggrieved by the judgment and decree, they could have preferred appeal against the said judgment and decree.
5. Learned counsel for the opposite party, however, contended that the petitioners had knowledge of the suit. The matter went upto to the Supreme Court. The petitioners were party in the Supreme Court cases. As they appeared in the Supreme Court, the petitioners in C.R. No. 127/2004 cannot say that they were not aware of the suit. The petitioners in C.R. No. 256/2004 appeared in the suit till framing of the issues and also filed an application for appointment of the Pleader Commissioner which was rejected and thereafter they left pairvi in the suit. According to the learned counsel, the petitioners had knowledge about the suit but knowingly they left the pairvi in the suit, and as such, the Court had no option but to decide the suit. Learned counsel also submitted that since the petitioners in C.R. No. 256/2004 appeared and also participated to some extent in the suit, as indicated above, it cannot be said that judgment and decree is ex parte and, as such, the Court below has rightly come to a conclusion that if at all the petitioners had any grievance they could have filed an appeal against, the said judgment and decree. He also contended that the revisions are not maintainable as the miscellaneous cases have been decided on merit.
6. On consideration of the submissions/materials on record this much is obvious that the petitioners in C.R. No. 256/2004 appeared in Title Suit No. 116/89. The petitioners in C.R. No. 127/2004 did not appear in the suit. However, it is a fact that the petitioners were party in the litigation before the Supreme Court. It is also true that the suit was decided in absence of the petitioners. The petitioners filed miscellaneous cases for setting aside the judgment and decree passed in the suit. The miscellaneous cases were dismissed without allowing the parties to adduce evidence in support of their cases. The finding recorded by the Court below is that Title Suit No. 116/89 was decreed on 9.5.2003/23.5.2003 on contest. The Court has no jurisdiction to set aside such judgment and decree. If the petitioners were aggrieved by the judgment and decree passed in Title Suit No. 116/89 they could have filed an appeal before the competent Court and, as such, it was held that the miscellaneous cases are not fit to be admitted. Accordingly, both the miscellaneous cases were dismissed.
7. The submissions of the learned counsel for the petitioners is that the finding recorded by the Court below is perverse and without any substance. There is nothing on the record to show that the petitioners at the time of hearing of the suit were present and contested the suit. Mere appearance of the petitioners in the suit upto some extent before taking up the suit for hearing cannot be a ground to hold that the suit was decreed on contest. The Court did not consider the case of the petitioners in C.R. No. 127/2004 that they did not appear at any stage in the suit. Therefore, the finding, as indicated above, is without any basis.
8. Counsel for the opposite party, however, contended that since the petitioners in C.R. No. 256/2004 appeared in the suit and also participated to some extent as indicated above, it cannot be held to be an ex parte decree. The submission, in my view, has no substance at all. in this regard the Apex Court in the case of Prakash Chander Manchanda and Anr. v. Smt. Janki Manchanda, 1987 Supreme Court 42, has held that if on the date fixed one of the parties to the suit remains absent and for that party no witness has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order XVII, Rule 2 in any one of the modes prescribed under Order IX of the Code of Civil Procedure. Obviously, in the present case the petitioners in C.R. No. 256/2004 appeared but left pairvi when the case was taken up for hearing. Naturally, in such a situation if any judgment and decree is passed, it shall be deemed to have been passed under Order IX, CPC and such a decree can safely be termed as ex parte decree. Thus, the Court has wrongly come to the conclusion that it was a contested decree and, as such, appeal would lie. Furthermore, if it is an ex parte decree the petition under Order IX, Rule 13, CPC is maintainable. An appeal can also be filed but it is open to the party to file an application for setting aside ex parte judgment and decree under Order IX, Rule 13, CPC and if it is filed it cannot be said that is not maintainable.
9. Thus, on consideration, as discussed above, I find that the Court has erroneously come to the conclusion that it is a contested judgment and decree and it has no jurisdiction to set aside such decree. If at all the petitioners were aggrieved by the judgment and decree they would have filed an appeal against the judgment and decree passed in Title Suit No. 116/89 and, as such, both the civil revision petitions are allowed, the order under challenge is hereby set aside. It is, however, made clear that the miscellaneous cases have to be decided on merit by the Court below after allowing the parties to adduce evidence in support of their case.