Allahabad High Court
Smt. Vijay Laxmi @ Rekharani vs The Judge Family Court, Bareilly And ... on 7 September, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON 02.09.2022 DELIVERED ON 07.09.2022 Court No. - 5 Case :- MATTERS UNDER ARTICLE 227 No. - 8975 of 2019 Petitioner :- Smt. Vijay Laxmi @ Rekharani Respondent :- The Judge Family Court, Bareilly And Another Counsel for Petitioner :- Murali Manohar Counsel for Respondent :- Rupesh Srivastav Hon'ble Salil Kumar Rai,J.
Heard the counsel for the parties.
The facts of the case are that the petitioner instituted Original Suit No. 1133 of 2012 before the Family Court, District Bareilly for a decree declaring herself to be the wife / widow of one Harish Chandra. Harish Chandra was the son of Tursi. Tursi had two sons, Harish Chandra and Omkar and a daughter Ram Beti. In Case No. 1133 of 2012, the petitioner impleaded Ram Beti as the only defendant in the case. The Family Court vide its judgment and decree dated 24.1.2018 decreed the case ex parte in favour of the petitioner and declared her to be the widow of the deceased Harish Chandra. Subsequently, the respondent no. 2 claiming himself to be the husband of the petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as, ''Code, 1908') for recall of the ex parte decree dated 24.1.2018 alleging that the decree has been obtained by the petitioner by practicing fraud on the court. The Family Court vide its order dated 26.9.2018 allowed the aforesaid application and recalled the decree dated 24.1.2018 and restored Case No. 1133 of 2012 to its original number and file. Subsequently, the petitioner filed an application under Section 114 read with Order XLVII of the Code, 1908 for review of the order dated 26.9.2018 which has been rejected by the Family Court vide its order dated 10.1.2019. The orders dated 26.9.2018 and 10.1.2019 have been challenged in the present petition.
It may be noted that while rejecting the review application filed by the petitioner vide its order dated 10.1.2019, the Family Court has taken note of the fact that a previous case registered as Case No. 171 of 2012 was instituted by the petitioner for a decree for payment of dues of the deceased Harish Chandra claiming herself to be the widow of the deceased Harish Chandra. The aforesaid suit was dismissed by the District Judge, Bareilly vide his judgment and decree dated 17.5.2012 on the ground that the petitioner was not the widow of the deceased Harish Chandra.
It has been argued by the counsel for the petitioner that the application under Order IX Rule 13 of the Code, 1908 was not maintainable in as much as an application for recall of an ex parte decree can be filed only by an impleaded defendant and not by a person who is a stranger to the suit. It was argued that respondent no. 2 had the remedy to file a suit for cancellation of the decree but the application under Order IX Rule 13 of the Code, 1908 was not maintainable. In support of his contention, the counsel for the petitioner has relied upon the judgment of the Supreme Court reported in Vijay Singh vs. Shanti Devi & Anr. 2017 (8) SCC 837. It was argued that for the aforesaid reasons, the impugned orders dated 26.9.2018 and 10.1.2019 passed by the Family Court, Bareilly are liable to be quashed and the petition is to be allowed.
Rebutting the argument of the counsel for the petitioner, the counsel for the opposite party no. 2 has supported the judgments and reasons given in the impugned orders dated 26.9.2018 and 10.1.2019 and has argued that the petition is liable to be dismissed.
I have considered the submissions of the counsel for the parties.
The judgment of the Supreme Court reported in Vijay Singh (supra) is not applicable in the present case in as much as the said judgment does not decide as to the rights of a stranger to file an application under Order IX Rule 13 of the Code, 1908 for recall of an ex parte decree, in case, the decree adversely affects his interests. However, the aforesaid issue is not res integra and has been decided by this Court in Surajdeo vs. Board of Revenue, U.P. Allahabad & Ors. AIR (1982) Allahabad 23 wherein Paragraph Nos. 23, 24 and 26, the Single Judge of this Court held that the courts have inherent jurisdiction to set-aside ex parte orders at the instance of persons whose rights have been affected though such persons are not parties to the proceedings in which orders have been made. The observations of this Court in Paragraph Nos. 23, 24 and 26 of the judgment reported in Surajdeo (supra) are reproduced below : -
"23. Here it would not be out of place to mention that the learned Member, Board of Revenue in 1974 Rev. Dec. 298 Sukhdeo v. Jagdhari did not notice the earlier decision of the Board reported in 1955 Rev. Dec. 335 Srinath v. Hardwar Rai and has made too wide observation that it is only a party to the suit which can apply for restoration of the suit and not a third person. In a declaratory suit tenants who seek declaration of their right as well as the land-holders are necessary parties. If either a tenant has not been impleaded in the suit by his co-tenant or if one of the landholders has been left out in the suit, in my opinion, the left out tenant or the landholder, though being not party to the suit, has a right to invoke the jurisdiction of the Court to set aside the order passed by it without hearing either of them. In such a circumstance I do not agree that a person, not party to the suit, cannot apply for restoration of the suit or setting aside the ex parte decree. The true test is that the person applying for restoration of the suit or for setting aside the decree should have some interest in the subject matter of the litigation.
24. In AIR 1925 Cal 1145, Rash Bihari Majumdar v. Kusum Kumari Guha, a learned single Judge of that Court has observed as below:--
"......The application being one under Section 151 Code of Civil Procedure invoking the inherent powers of the Court to make an order necessary in the ends of justice the question as to the locus standi of the applicant can hardly arise. The petitioner was no doubt not a party to the mortgage suit but it cannot be urged for a moment that he is not vitally interested in the order which had been passed and which he seeks to be vacated."
26. My attention has also been drawn to ILR (1949) 1 Cal 153 Mahmud Ismail Salehji v. Ahmad Ismail Salehji wherein it has been held :--
"...... there is inherent jurisdiction to set aside ex parte orders against persons whose rights have been affected by such orders although they are not parties to the proceedings in which such orders are made."
In view of the law laid down by this Court in Surajdeo (supra), there is no illegality in the orders passed by the Family Court.
The petition lacks merit and is, hereby, dismissed.
Order Date :- 7.9.2022 Satyam