Ghasitu and Others vs Commissioner Garhwal Mandal and Others

Alok Singh, J.—Present petition is filed assailing the judgment and order dated 05.12.2005, passed by the Collector, Haridwar, whereby application under Order 9 Rule 13 C.P.C. was allowed and judgment and order dated 26.12.2006, passed by the Divisional Commissioner, Garhwal whereby revision filed by the present petitioners/plaintiffs was dismissed. Brief facts of the present case, inter alia, are that present petitioners have preferred Case No. 02 of 2001, Ghasitu and others Vs. Land Management Committee and others, under Rule 115-P of the U.P.Z.A. & L.R. Rule, 1952 for the cancellation of pattas of awadi granted in favour of the private respondents herein vide resolution dated 13.09.2000 duly approved by Deputy Collector, vide order dated 11.10.2000.

Suit so filed was allowed/decreed in favour of the petitioners herein vide judgment dated 19th March, 2004, passed by the Collector Haridwar cancelling the pattas earlier granted in favour of the private respondents herein. Private respondents herein, thereafter, moved an application under Order 9 Rule 13 C.P.C. alongwith an application under Section 5 of the Limitation Act for setting aside ex-parte judgment canceling the pattas dated 19.03.2004.

Application so moved by the petitioners, private respondents herein was allowed vide impugned order dated 05.12.2005 and revision arising therefrom was dismissed vide impugned order dated 26.12.2006. Feeling aggrieved, petitioners have preferred present writ petition before this Court.

It is stated in the application under Order 9 Rule 13 C.P.C. that no notice was ever served on the defendants/private respondents herein; defendants/private respondents herein were never served in Suit No. 02 of 2001; alleged affidavit of Shahjad S/o Masook and Smt. Shamina W/o Shahjad did not bear their signatures and their signatures on the affidavit are forged and fictitious.

As per Article 123 of the Limitation Act, 1963, application to set aside ex-parte judgment/decree can be moved within 30 days from the date of the ex-parte judgment/decree or where summons or notice are not served within 30 days from the date of acquiring knowledge about the ex-parte judgment and decree.

In the present case, no separate order was passed on the application seeking condonation of delay in moving the application for setting aside the ex-parte judgment and decree.

There is another aspect of the matter that while passing the impugned order dated 05.12.2005, learned Trial Court has not recorded any finding as to whether defendants/private respondents herein were duly served or not or as to whether defendants/private respondents herein were having any knowledge about the pendency of the case against them or as to whether alleged service was valid and sufficient or was fictitious. None of the grounds taken in the application for setting aside the judgment and decree has been dealt with by the Trial Court. The only observation made by the Trial Court is that in the interest of justice, application for setting aside the judgment and decree is liable to be allowed and allowed. Therefore, impugned judgment dated 05.12.2005 does not sustain in the eyes of law.

Perusal of the impugned judgment dated 26.12.2006, passed by the Revisional Court, also reveals that this is also non speaking order and Revisional Court too did not care to record any finding on the grounds taken in the application for setting aside the ex-parte judgment and decree. Therefore, present petition succeeds and is hereby allowed. Impugned orders dated 05.12.2005, passed by the Collector, Haridwar and 26.12.2006, passed by the Divisional Commissioner are hereby set aside.

Matter stands remanded to the learned Trial Court. Parties shall appear before the learned Trial Court for further orders on 15th May, 2015. Learned Trial Court shall, first of all, decide the application under Section 5 of the Limitation Act at its own merit in accordance with law and if delay is condoned, application under Order 9 Rule 13 C.P.C. shall be decided after giving sufficient opportunity to both the parties at its own merit in accordance with law. In the peculiar facts and circumstances of the case, parties shall maintain status quo qua the possession and nature of the property till decision is taken finally by the learned Trial Court.