Bhageshwari Choudharain and Another vs Pratap Narayan Choudhary and Others

B.K. Roy, J.—The Appellants assail an order rejecting their petition under order IX Rule 13 of the CPC (hereinafter to be referred to as the Code) filed for setting aside the ex parte decree dated 31.5.1982.

In view of one of the submissions made by Mr. Anil Kumar Jha, learned Counsel for the Appellants, namely, that as laid down by a Division Bench of this Court to Jharkhand Mines and Industries Ltd. and Another Vs. Nand Kishore Prasad and Others, , it was incumbent upon the court to see that the notices of the amended plaint be served on the Defendants of the suit which was not done, it is not necessary for me to state facts and other points/issues in this judgment in details.

It appears from paragraph 17 of the impugned order that an argument was made on behalf of the Appellants that notice of the amended plaint should have been served on them which was amended on 3.5.1982 and no notice of the amended plaint having been served, the ex parte decree is liable to be set aside in view of the aforementioned decision of this Court in M/s. Jharkhand Mines (Supra) but the said argument was wrongly held not legally tenable because in spite of service of summons notice, registered cards and gazette publication, they did not choose to appear and contest the suit.

Mr. Anil Kumar Jha, learned Counsel for the Appellants submits that the Division Bench judgment of this Court in Jharkhand Mines'' case (Supra) was incorrectly distinguished and the decree in question was liable to be set side on this ground alone.

Mr. Shailendra Kumar Jha, learned Counsel appearing for the Respondents, on the other hand supports the impugned order but submits alternatively that if this Court chooses to remand the case, the Appellants should be restrained from alienating the suit properties any further as they have transferred the suit properties by two registered sale deeds dated 2.7.1982 and 13.7.1982 in the ends of justice.

Mr. Anil Kumar Jha, in reply, submits that in the ends of justice both parties be restrained from transferring the suit properties during the pendency of the suit which should he decided expeditiously as it has remained by now pending for more than 10 years.

In the case of M/s. Jharkhand Mines and Industries Ltd. (Supra) a Division Bench of this Court held as follows:

It was incumbent on the court to see to it that the notice of the amended plaint was served on the Defendants of that suit. The Code of Civil Procedure, in my opinion, casts a duty on the court to see that the Defendants are made aware of any amendment in the plaint, whether the amendment be in regard to the addition of parties or in regard the contents thereof. Unfortunately, the learned Subordinate Judge, who passed the ex parte decree, did not direct any notices to be issued to the Defendants with a view to make them aware about the amendment of the plaint. He should have issued such notices and awaited the service report, and, if the Defendants so desired, granted them an opportunity to file a written statement before putting up the suit for hearing and disposal, whether ex parte or otherwise. On this ground alone. I am of the opinion that the ex parte decree is vitiated and must be set aside.

The ratio laid down by the Division Bench is binding on me. I am of the view that the court below had wrongly distinguished the ratio aforementioned.

For the reasons aforementioned, I hold that the impugned order is illegal and cannot be sustained in law.

In the result, the impugned order as also the ex parte decree are set aside. This appeal as also the application under Order IX Rule 13 of the Code filed by the Appellants are allowed but in the peculiar facts and circumstances of the case, there will be no order as to cost.

In the ends of justice, as suggested by the learned Counsel for both sides, I restrain the Appellants as well as the Respondents from making any alienation during the pendency of the suit. I also direct the Appellants to file their written statements within six weeks from today. Within two weeks thereafter the parties arc also directed to file their list of documents, along with the documents, and the list of witnesses, whom they want to examine during the trial. I further direct the trial court to dispose of the suit at the earliest curbing all unreasonable adjournments which may be made by one or the other party strictly adhering to the amended Order XVII of the Code. The trial court will also take into account the effect of the transfers made by the Appellants, referred to above.