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Judgment
Ramesh Kumar Merathia, J.—Miscellaneous Appeal No. 302 of 2006 has been filed against the order dated 28.7.2006 passed by Shri Vijai Kumar Sharma, Sub Judge-I, Giridih in Misc. Case No. 9 of 2005 refusing to set aside the ex parte decree passed on 1.8.2005 in Partition Suit No. 120 of 2004; whereas in M.A. No. 399 of 2008 has been filed against the order dated 30.9.2008 passed by Shri Anil Kumar Singh, Sub Judge-I, Giridih in Misc. Case No. 5 of 2006 refusing to set aside the same ex parte decree.
Counsel appearing for the parties agreed that these appeals can be disposed of without issuing notice to the proforma respondents, as the contesting parties are before this Court. Accordingly, both the appeals were heard together.
Mr. Manjul Prasad, learned senior counsel appearing for the appellants in M.A. No. 302 of 2006 and Mr. Jai Prakash, learned senior counsel appearing for the appellant in M.A. No. 399 of 2008 submitted that the impugned order is perverse. On the other hand, Mr. P.K. Prasad, learned senior counsel appearing for the respondents No. 1 and 2 in both the appeals supported the impugned orders. He further submitted that the applications in question filed by the appellants for setting aside ex parte decree were not maintainable in view of Order IX Rule 14 of the CPC as the respondents No. 1 and 2 were not made parties therein.
Miscellaneous Case No. 9 of 2005 was registered on the application filed by the appellants of M.A. No. 302 of 2006 under Order IX Rule 13 of the CPC for setting aside the ex parte decree passed on 1.8.2005 in Partition Suit No. 120 of 2004.
The trial court rejected it mainly on the ground that the appellants did not make any effort to get their signatures on the postal A.D. tested by the hand-writing expert and, therefore, it was presumed that summons have been served on them.
Miscellaneous Case No. 5 of 2006 was registered on the application filed by the appellants in M.A. No. 399 of 2008 under Order IX Rule 13 of the CPC for setting aside the same ex parte decree.
This petition has been rejected on the ground that it is barred by res judicata in view of the order passed in the aforesaid Misc. Case No. 9 of 2005 and secondly, such petition was filed beyond the period of limitation as the appellant could not prove her case about the date of knowledge.
After hearing the parties at length and perusing the records, it is clear that the impugned orders are perverse. The respective cases of the appellants have not been considered. The evidences/materials brought on the record by them in support of their case, have been ignored and wrong presumptions have been drawn contrary to the records.
It is necessary to refer to the background of this suit. Prior to filing of the present suit, a suit being Partition Suit No. 55 of 2003 was filed by the appellants in these appeals along with other heirs of Late Sheo Prasad Chhaparia. Hulasi Devi and her two sons-respondents No. 1 and 2 in these appeals were made defendants No. 6 to 8 saying that they were caretakers of the plaintiffs and, therefore, they were made parties in the suit. Hulasi Devi and her two sons appeared in that suit and filed written statement. Thereafter this partition suit was filed by Hulasi Devi making her two sons as defendants No. 1 and 2 and after making a show of service of summons on the appellants and other defendants, she obtained an ex parte compromise decree with her two sons. The most unfortunate part is that the court concerned has become party to such mischief.
It is pertinent to note that on 20.12.2004 the trial court passed order for filing requisites under ordinary processes as well as by registered post fixing 25.1.2005, but from the order dated 11.3.2005 it appears that the plaintiff Hulasi Devi herself filed postal receipt Nos. 4429 to 4436, all dated 22.12.2004, though no order was passed by the trial court under Order V Rule 9A of the CPC for serving summons personally.
Further in the case of appellant-Urmila Devi, surprisingly, on the postal acknowledgement, there is no seal of the addressee Post Office-Kolkata and moreover though it bears the alleged date of service at Kolkata on 22.12.2004, but it was received back in the Giridih on the next date on 23.12.2004. There is no signature of Urmila Devi. Even then the trial court presumed the service of summons. Furthermore the trial court wrongly presumed that Shri Bimal Khetan was the Advocate of Urmila Devi, without looking into the records, from which it could appear that he was not the Advocate of Urmila Devi. She clearly said in her evidence that she learnt about passing of the ex parte decree from Advocate Vimal Khetan on 29.2.2006 when she contacted him to try for amicable settlement with her brothers outside the Court. Urmila Devi clearly proved that she knew about ex parte decree on 29.7.2006 and, therefore, her application could not be rejected on the ground of limitation. The trial court went to the extent of saying that the case of Urmila Devi was barred by res judicata in view of the order passed in Misc. Case No. 9 of 2005. However, Mr. Prasad, appearing for respondents No. 1 and 2 fairly submitted that he cannot support such finding about res judicata.
In Misc. Case No. 9 of 2005 filed by the appellants of M.A. No. 302 of 2006, the trial court presumed service of summons on the ground that they did not make efforts to get their signature tested from the hand writing expert ignoring their case based on the materials on record and the attending circumstances which clearly proved that the summons were not served on them and that Hulasi Devi obtained compromise ex parte decree by mischief and in mala fide manner.
Regarding the contention of Mr. Prasad that-respondents No. 1 and 2 having not been made parties, the applications for setting aside ex parte decree, were not maintainable, in view of Order IX Rule 14 of the Code of Civil Procedure, learned Counsel for the appellants submitted that-by mistake they were not made parties, but then such objection was not raised before the trial court, otherwise the appellants could have made them parties after taking permission from the court and moreover no prejudice has been caused to respondents No. 1 and 2 as they appeared as witnesses in Misc. Case No. 9 of 2005 and they have been heard in these appeals; and moreover they were substituted in Misc. Case No. 5 of 2006 in place of Hulasi Devi after her death. I find no force in the submission of learned Counsel for the appellants that no prejudice has been caused to respondents No. 1 and 2.
In the result, the impugned orders as well as the ex parte judgment and decree dated 1.8.2005 passed in Partition Suit No. 120 of 2004 are set aside. The appeals are allowed with cost of Rs. 10,000/- in each appeal, to be paid by respondents No. 1 and 2 to the appellants in the trial court within four weeks from today.