Prabhawati vs Vth Additional District Judge, Barabanki

Shri Narayan Shukla,J.

Heard Mr.J.C.Srivastava, learned counsel for the petitioners as well as Mr.Adnan Ahmad, learned counsel for opposite party No.3.

The petitioners have challenged the order dated 19th of July, 1995, passed by the Civil Judge (Junior Division) in Regular Suit No.431 of 1992 as also the order dated 13th of May, 2009, passed by the Additional District Judge, Barabanki in appeal No.49 of 2008, whereby the petitioners'' application moved under Order 9 Rule 13 CPC for setting aside the exparte decree dated 19.7.1995 has been rejected.

The learned counsel for the petitioners submits that the suit was instituted in 1992. The service of notice upon the petitioners/defendants is not disputed. The petitioners sought time for filing written statement, but in the meantime the parties agreed to settle the dispute out of court itself, pursuant to which they also prepared a compromise deed, but the same could not be finalized. However, the petitioners were in full hope to get it finalized, that is why they could not contest the matter and ultimately in 1995 the same was decreed exparte. Thus the learned counsel for the petitioners submits that the petitioners were under bonafide belief to get it settled, even thereafter also particularly when the terms of agreement was reduced in writing with the consent of the opposite parties, therefore, they did not proceed to file application for restoration of suit within stipulated time, whereas Mr.Adnan, learned counsel for the opposite parties submits that no such agreement was executed between the parties, rather fraudulently they obtained the signature of the opposite party on the blank paper and prepared the compromise deed, but that was not with the consent of the opposite party, thus he submits that for one or other reason the petitioners have concocted the story of compromise only just to get the exparte order set aside.

The objection against the application for restoration of the suit is on record, upon peursal of which, I find that it is admitted by the opposite parties that the petitioners obtained his signature, but the allegation is that they obtained signature on the blank paper fraudulently and thereupon they have entered the compromise. Be that as it may, it is a disputed question of fact, which can be decided by the trial court itself. The trial court has rejected the petitioners'' application on the ground that if any such agreement was there, that must have been brought on record instead of seeking time for filing written statement, but the petitioners failed to bring it on record, therefore, it is obvious that there was no any agreement and only this story has been created just to get the delay condoned.

Upon perusal of record, I find that the petitioners have alleged that they have been trying to get the compromise implemented and it appears that they did wait for a long time, but any how the same could not be finalized, whatever the reason has been there. Under the bonafide belief that at some point of time the compromise shall take a final shape, they could not have contested the matter. Upon perusal of the merit of the case also, I am of the view that the matter requires decision on merit, therefore, treating the action of the petitioners for not contesting the matter during the period from 1995 to 2002 as bonafide, I hereby condone the delay in filing the application for setting aside the order dated 19.7.1995 and also set aside the decree and order passed by the court below with the direction that the trial court shall proceed to hear the case on merit. The orders impugned dated 19.7.1995, passed by the Civil Judge (Junior Division) Barabanki and order dated 13.5.2009, passed by the Additional District Judge, Barabanki are hereby quashed.

In the result the writ petition is allowed.