Smt. Sandhya Bai Sahu vs Saurabh Tiwari

K.K. Trivedi, J.—This revision u/s 115 of the CPC is directed against the order dated 16.08.2013 passed in Misc. Appeal No. 17/2011 by the II Additional District Judge, Mandla, by which the order dated 22.09.2009 passed in M.J.C. No. 8/2008 by the Civil Judge, Class-I, Mandla, has been affirmed. The facts giving rise to filing of this revision are that the non-applicants/plaintiffs filed a suit for eviction of the applicant in the Court of II Civil Judge, Class-II, Mandla. The summon of the said suit was issued to the applicant but since she was not present on the date of notice, ex parte proceedings were done and ex parte judgment and decree was passed against the applicant on 02.05.2006. The applicant could know about the ex parte judgment and decree only when the said judgment and decree was put for execution and immediately thereafter she filed an application under Order 9 Rule 13 of the CPC for setting aside ex parte judgment and decree. She also filed an application for condonation of delay in filing the said application u/s 5 of the Limitation Act. The non-applicants/plaintiffs contested the application of the applicant stating that she was aware of the notice of the suit but deliberately she avoided to appear before the Court despite service of the notice and, therefore, rightly the ex parte proceedings were done by the Court below and ex parte judgment and decree was passed against her. It was further contended that the applicant was aware of the ex parte judgment and decree from day one but no action was taken by her to get the said judgment set aside.

Learned Civil Court recorded the statements of the witnesses and came to the conclusion that no bonafide reasons were shown by the applicant for delay in filing the application under Order 9 Rule 13 of the CPC and holding as such, the said application was rejected, as a consequence the application under Order 9 Rule 13 of the CPC was also dismissed. The applicant preferred a miscellaneous appeal against the said order of the Court before the lower Appellate Court and since the appeal has also been dismissed, this revision is required to be filed.

It is contended by learned Counsel for the applicant that since evidence was adduced to the effect that the notice of the suit was not served on the applicant in appropriate manner, therefore, ex parte proceedings could not have been done against her but these aspects have not been looked into by the Court below and erroneously application submitted by the applicant for condonation of delay in filing the application for setting aside ex parte judgment and decree was rejected. It is, thus, contended that the conduct of the non-applicants/plaintiffs is writ large as they are not appearing before this Court even after service of notice of this revision and as such it was not rightly held that the application for setting aside ex parte judgment and decree was not made bonafidely.

This Court has issued notices of this revision to the non-applicants/plaintiffs while granting an interim stay on 06.09.2013. The registered notices sent to the non-applicants have returned back with the note that the non-applicants have refused to accept the said notices. This itself is enough to demonstrate that even when the proceedings of execution of the ex parte judgment and decree were stayed by the Court, the non-applicants are not interested in contesting the matter. Even otherwise, there was no reason shown as to why the cause shown for not appearing before the Court could not be accepted as bonafide cause. Merely because there was some delay in making the application for setting aside the ex parte judgment and decree, the same was not to be rejected.

In view of the aforesaid, this revision is allowed. The orders dated 22.09.2009 and 16.08.2013 are hereby set aside. As a consequence, the application under Order 9 Rule 13 of the Code of Civil Procedure, filed by the applicant for setting aside the judgment and decree dated 02.05.2006 passed in Civil Suit No. 90-A/2005 by the II Civil Judge, Class-II, Mandla, is hereby allowed. Let the said suit be restored on its original number and opportunity be granted to the applicant to file a written statement in the said case, if it is not already filed. However, it is made clear that the applicant would not be granted more opportunities for filing the written statement if it is not filed within a month from the date of restoration of the suit.

With the aforesaid, the revision is allowed and disposed of. Certified copy as per rules.