Muzaffarnagar Eye Relief Society and Others vs Vth Addl. District and Session Judge and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

Respondent No. 3 Dr. Shailendra Kumar filed a suit against the petitioners being O.S. No. 228 of 1980 before Civil Judge, Muzaffar Nagar seeking declaration to the effect that his termination order by the defendant dated 31.8.1980 was illegal and he must be declared to be in continuous service since then and for recovery of Rs. 46,553.30 as arrears of salary and travelling allowance, etc. Respondent No. 3 was working on the post of Chief Medical Officer (C.M.O.) in Nehru Eye Hospital, Muzaffar Nagar petitioner No. 3, which is run by petitioner No. 1 Society which was defendant No. 1 in the suit. According to the petitioners defendants, services of respondent No. 3 plaintiff were terminated on account of the serious charges of corruption, nepotism and slackness in duty. The suit was decreed ex parte on 24.3.1986 by IIIrd Civil Judge, Muzaffar Nagar. Relief of recovery of Rs. 46,553.30 was, granted and order dated 21.8.1980 was declared illegal and void. Thereafter on 24.3.1986 itself an application for correction/ amendment in the Judgment under Sections 151, 152 and 153, C.P.C. was filed which was registered as Misc. Case No. 25 of 1986. Thereafter an application was filed before the District Judge for transfer of the said Misc. Case to the court of 1st Civil Judge Muzaffar Nagar. The said application was allowed on 25.3.1987 and the matter was transferred to 1st Additional Civil Judge. Transfer application was allowed on the ground that the Presiding Officer who decided the suit had meanwhile been posted as 1st Additional Civil Judge. 1st Additional Civil Judge, Muzaffarnagar on 6.5.1987 allowed the Misc. Case No. 25 of 1986. The Misc. Case No. 25 of 1986 was also decided ex parte as according to the said order in spite of sufficient service no one appeared for defendants opposite parties. Through the said order it was added in the original judgment and decree that ex parte cost should also be paid to the plaintiff and plaintiff should be paid 6% interest pendente lite and future. The figure 21.8.1980 occurring in the operative part of the judgment/decree was also corrected as 31.8.1980. Thereafter Execution Case No. 4 of 1987 was filed by the plaintiff respondent for execution of the amended decree. According to the defendants petitioners notice of execution was served upon them from which they for the first time came to know about the ex parte decree and ex parte correction order. Thereafter on 11.11.1988, restoration application was filed alongwith delay condonation application. Illrd Civil Judge, Muzaffar Nagar through judgment and order dated 6.4.1988, rejected the restoration application. Against the said rejection order defendant petitioners filed Misc. Appeal No. 18 of 1992, which was dismissed by Vth Additional District Judge, Muzaffar Nagar on 8.9.1994. This writ petition is directed against the orders rejecting restoration application passed by trial court as well as appellate court.

The trial court while rejecting restoration application mentioned that application for transfer of Miscellaneous case under Sections 151, 152 and 153, C.P.C. was filed by the defendants petitioners hence there was no need to inform them about the transfer of case. This observation was clearly wrong. Transfer application was filed by the plaintiff-respondent No. 3 and not by the defendants-petitioners. Appellate court corrected this error. However both the courts below particularly appellate court held that as through a registered notice dated 2/4 August, 1987, given to the District Magistrate, information had been given about the ex parte decree hence restoration application was barred by time. The said notice was addressed to the District Magistrate and not to Muzaffar Nagar Eye Relief Society through District Magistrate. The appellate court held that this discrepancy did not make any difference. In my opinion the appellate court was utterly wrong in its approach. The office of District Magistrate receives scores of notices/letters/applications every day. If District Magistrate is ex officio President or other office bearer of any institution then communication should be sent to the said institution. Entire information regarding such institution is kept in the office of the institutions and not in the office of District Magistrate. If the concerned clerk in the office of D.M. did not send the aforesaid letter dated 2/4 August. 1987 to the petitioner''s office then the petitioners cannot be penalized for the same. Matter would have been quite different if registered letter had been sent to the petitioners defendants at their address. The action of the plaintiff of sending the registered letter to the office of District Magistrate, and not to the office of petitioners clearly shows that he wanted to conceal the information and create ground for opposing restoration and delay condonation applications which might be filed subsequently.

The order passed on applications under Sections 151, 152 and 153, C.P.C. is difficult to maintain. Apart from correction of date of termination order, the other relief granted through the said order may not fall within the powers conferred by aforesaid sections of C.P.C. However, no final opinion regarding this aspect need be expressed in this judgment.

After transfer of the Misc. case initiated on the correction application it was essential to send information to the petitioners defendants by virtue of Rule 89A General Rule (Civil), which was not done.

The ground mentioned in the restoration application was that 12.12.1985 was the date fixed in the suit and on the said date case could not be taken up due to advocate''s strike and thereafter the advocates of the petitioners did not inform them about the next date.

The Supreme Court in M.K. Prasad Vs. P. Arumogam, has held that while considering application for setting aside ex parte decree, Court should keep in mind the judgment impugned, extent of property involved and stake of parties. It was further held in the said case that the ground of condonation of delay taken was that counsel appearing for the applicant had left without informing him and applicant came to know about passing of ex parte decree on receipt of notice of execution proceedings which was a good ground and conduct of applicant did not castigate him as an irresponsible litigant. It was further held that inconvenience caused to the opposite party (plaintiff) could be compensated by awarding Rs. 50,000 as exemplary cost.

In view of the above, I am of the opinion that both the courts below were legally wrong in rejecting the delay condonation application and application for setting aside ex parte decree.

Accordingly, writ petition is allowed. Both the impugned orders as well as ex parte judgment and decree dated 24.3.1986, are set aside on payment of Rs. 20,000 as cost. As ex parte decree has been set aside hence subsequent order dated 6.5.1987 correcting the said decree under Sections 151. 152 and 153, C.P.C. automatically goes.

Under interim order passed in this writ petition an amount of Rs. 30,000 has already been deposited by the petitioners. Out of this amount, Rs. 20.000 shall be paid to the plaintiff respondent No. 3 as cost and the remaining amount of Rs. 10,000 shall be returned to the petitioners.

Both the parties are directed to appear before the trial court on 19.3.2007 alongwith certified copy of this Judgment. The trial court shall decide the suit within six months from the date on which certified copy of this judgment is filed before him.