Ram Nath Singh vs Jagannath Singh and Others

Satish K. Agnihotri, J.—The petitioner has filed this petition, impugning the order dated 14.03.2008 (Annexure P6), passed by the Additional District Judge, Bemetera, District-Durg, in Misc. Civil Appeal No. 14 of 2007.

The brief facts, in nutshell are that the petitioner filed a Civil Suit No.40-A/2005 before the Civil Judge, Class-II, Bemetara for partition, declaration, possession and perpetual injunction against the respondents No.1 and 2 (defendants). That suit was decreed ex parte by judgment and dated 30.11.2006. Thereafter, the respondents/defendants No.1 and 2 filed an application under Order 9 Rule 2 of the CPC (for short ''CPC'') for setting aside the ex-parte judgment and decree, which was registered as M.J.C.No. 1/2007. Learned First Civil Judge, Class-II, Bemetera, District Durg by order dated 09.10.2007 (Annexure P5) dismissed the M.J.C.No. 1 /2007, holding that the summons of the original civil suit were served upon the respondents/defendants No. 1 and 2 as they did not choose to appear, thus the ex-parte judgment and decree was passed.

Being aggrieved, the respondents/defendants preferred Misc.Civil Appeal No. 14/2007, which was allowed by order dated 14.03.2008, passed by the Additional District Judge, Bemetera, District - Durg. The petitioner/plaintiff has filed this petition impugning the order dated 14.03.2008.

Shri Uttam Pandey, learned counsel appearing for the petitioner would submit that the summons of the original civil suit was served upon the respondents No.1 and 2 on 21.01.2006, in accordance with law. After the judgment dated 30.11.2006 passed in Civil Suit No.40-A/2005, the petitioner has sold his share to one Nandkishore Pandey. The respondents No. 1 and 2 filed an application under Order 1 Rule 10 read with Section 151 of the CPC in M.J.C.No. 1/2007, which was rejected. But the respondents No. 1 and 2 did not challenge the said order. Therefore, the impugned order passed by the Court below is not sustainable in law.

Having heard learned counsel appearing for the petitioner and having gone through the impugned order dated 14.03.2008 this Court is of the opinion that the reasons and findings recorded by the learned Court below are well-founded. Learned Court below has held that the application filed under Order 9 Rule 13 read with Section 151 of the CPC and section 5 of the Limitation Act was accompanied by affidavit. The petitioner/plaintiff remained absent in the M.J.C.No. 1/2007. Even then, without there being any evidence or reply from the petitioner/plaintiff in rebuttal, the M.J.C.No. 1/2007 was rejected. Accordingly, the judgment dated 30.11.2006 and decree dated 05.12.2006 were set aside and the trial Court was directed to decide the suit on merits. Interest of the petitioner cannot be prejudiced, if the suit is heard on merits, in accordance with law, as the suit was decided ex parte, without affording an opportunity of hearing to the defendants/respondents.

It is well-high established that this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India should refrain itself from interfering with the order passed by the Courts below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case.

In view of the foregoing and for the reasons mentioned hereinabove, there is no merit in this petition and the same is dismissed at motion stage.