Smt. Geeta Bai and another vs Preetam Singh and others

This petition filed u/s 227 of the Constitution of India is directed against the order dated 13/04/2011, whereby I.A.No. 05/11 filed by the present petitioners is rejected by the Court below.

Shri D.D. Bansal submits that he confines his arguments only to the part of the impugned order, whereby I.A.No. 05/11 is rejected by the Court below.

In nutshell, the case of the petitioners is that the Court below by order dated 24/02/2010 proceeded exparte against the defendants except defendants No. 1 & 7. Against this order dated 24/02/2010, the present petitioners, who were defendants No. 2 & 4 preferred an application under Order 9 Rule 7 read with Section 151 C.P.C. Annexure-P/5. The Court below after obtaining reply from the other side, captioned the said application as I.A.No. 05/11. This I.A. is rejected by impugned order, against which the present petition is filed.

Shri D.D. Bansal submits that coincidently and interestingly, the names of respondents No. 2 & 5 are the same i.e. Geeta Bai. The application under Order 9 Rule 7 C.P.C was filed by defendants No. 2 & 4 and the Court below treated it to be an application preferred by defendants No. 4 & 5 erroneously. Thus, the Court below addressed itself only with regard to the service of notice to said respondents and reason assigned were also qua respondents No. 4 & 5. Shri Bansal further submits as per the mandatory provisions of Order 32(3) M.P. Amendment, since defendant No.4 was minor, a guardian ought to have been appointed and without proper service, the Court below was not justified in proceeding exparte and then not recalling the said order on the application under Order 9 Rule 7 C.P.C.

Shri P.S. Raghuvanshi learned counsel for the respondents fairly submits that Court below has committed an error because of similar names of defendants No. 2 & 5. However, he submits that notice was duly served to the respondent No.4, which is evident from Para 2 of the application Annexure-P/5.

I have heard learned counsel for the parties and perused the record.

This is an admitted position that the application under Order 9 Rule 7 CPC Annexure-P/5 was filed by defendants No. 2 & 4 and Court below treated it to be an application preferred by defendants No. 4 & 5. Thus, there is a manifest error apparent on the face of record on the part of the Court below. Because of aforesaid error, the Court below examined the matter qua defendants No. 4 & 5 only. The Court below has also not assigned any reason qua the provisions of Order 32 CPC, which is mandatory for the purpose of effecting service and proceedings against the minor. In absence thereof, to the extent order passed rejecting I.A.No. 05/11 is liable to be quashed.

Accordingly, the order dated 13/04/2011 to the extent I.A.No. 05/11 was rejected is set aside. The matter is remitted back to the Court below to decide I.A.No. 05/11 afresh in the light of aforesaid observation. It is expected that Court below will take an early decision in the matter in accordance with law.

Let it be noted that this Court has not expressed any opinion on the merits of the case. Petition stands disposed of.