Sanjay Kumar Chaturvedi vs Praduman Kumar Choubey

Sanjay Kumar Dwivedi, J

Heard Mr. Rajeev Ranjan Tiwari, learned counsel appearing for the petitioner and Mr. Mahesh Tewari, learned counsel appearing for the opposite party Nos.1 to 7 and 9 to 11.

So far opposite party Nos.8 and 12 are concerned, they have already been served through their lawyer and that has been recorded in the order dated 22.04.2025, however, they have chosen not to appear.

This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 29.04.2024 passed by learned Civil Judge (Sr. Division)-VI, Ranchi in O.S. (Partition) Suit No.506 of 2023 whereby the learned Court has been pleased to allow the petition filed by the defendant No.1 under Order IX Rule 7 of the CPC.

Mr. Rajeev Ranjan Tiwari, learned counsel appearing for the petitioner submits that the said Original Suit (Partition) Suit No.62 of 1999 was instituted by one Ramakant Choubey (father of the petitioner) and during the pendency of the suit he died leaving behind the petitioner as his legal representative and accordingly they were substituted in the case pending before the learned trial court. The defendant No.1 (uncle of the petitioner) also left for his heavenly abode on 23.05.2016 and his legal heir/successor was substituted by order dated 05.01.2018. He submits that even after valid service, the defendants were not appearing and in view of that the learned Court has started the proceeding ex-parte against the defendants by order dated 10.12.2018. He submits that thereafter the said petition was filed under Order IX Rule 7 of CPC by which the learned Court has recalled the ex-parte order at the cost of Rs.2,000/- and allowed the defendants to contest the suit. According to him, since 2018 the matter was proceeding ex-parte and the petition was filed on 21.03.2024 and the learned Court has allowed the same which is not in accordance with law. He submits that sufficient cause is not there for setting aside the ex-parte order.

Mr. Mahesh Tewari, learned counsel appearing for the opposite party Nos.1 to 7 and 9 to 11 submits that the learned Court on reasoned order has been pleased to recall the order dated 10.12.2018 at the cost of Rs.2,000/-. He submits that the defendants will appear before the learned court and will take all the steps for early disposal of this case.

The said suit is of partition and it was proceeding ex-parte, however later on the said petition was filed under Order 9 Rule 7 of CPC to recall the ex-parte order which has been recalled by the learned Court and the ground has been disclosed before the learned Court by the defendants that they have been substituted and they were not knowing about their substitution and later on it has been communicated to them and thereafter the said petition for recall was filed which has been allowed by the learned Court. The trial court is in its discretion to refuse or accept the petition for recalling the order and in view of that there is no jurisdictional error in accepting the trial court to recall the ex-parte order. This Court in exercise of powers under Article 227 of Constitution of India does not have an unbridled power to substitute its own discretion on the orders of the learned trial court if such orders are not vitiated by jurisdictional error. The sufficient cause has been shown to recall the said order and in view of that the learned Court has allowed the same at the cost of Rs.2,000/-. There is no illegality in the impugned order, as such this petition is dismissed.

Dismissal of this petition will not prejudice the case of either of the parties and both the sides will take steps for early disposal of this suit.

The plaintiff and defendants will not take unnecessary adjournments before the learned trial court.