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Shiv Dayal Jain v. The Special Judge & Others - WRIT - C No. 25479 of 1997  RD-AH 6360 (22 March 2006)
Court no. 31
Civil Misc. Writ Petition No. 25479 of 1997
Shiv Dayal Jain
The Special Judge, E.C. Act and ors.
Hon'ble Bharati Sapru, J.
This petition has been filed against a revisional order dated 2.5.1997 by which the revisional court has set aside the order of the trial court dated 22.5.1992 by which the application filed by the petitioner under Order IX Rule 13 C.P.C. had been allowed.
The facts of the case are that the respondent no. 3 who claims to be an adopted brother of the petitioner, filed a suit no. 150 of 1984 for partition of the family property. The said suit was decreed ex parte on 19.12.1984.
It is the case of the petitioner that he came to know about the ex parte decree on 16.4.1985 when amin came on the spot for measurement. Having gained knowledge on 16.4.1985, the petitioner moved an application under Order IX Rule 13 C.P.C. on 29.4.1985 that is to say within a period of 30 days. The trial court having examined the entire matter allowed the application of the petitioner under Order IX Rule 13 C.P.C. and passed the order dated 22.5.1992. The respondents filed a revision against the decree dated 22.5.1992 and by the revisional order, the revisional court came to the conclusion that because relationship between the petitioner and the respondents was that of brothers, it cannot be said that he had no knowledge of the suit being decreed. Learned counsel for the petitioner has argued that it is not within the domain of the jurisdiction of the revisional court to set aside the finding of the fact recorded by the trial court relating to condonation of the delay in filing of the restoration application under Order IX Rule 13 C.P.C. For this purpose, he has cited a decision of this Court in the case of State of U.P. versus III A.D.J. and anr., as reported in 1988 AWC 1433. He has also relied on another decision of this Court in the case of Ambika Chaudhary and ors., versus The District Judge and ors., as reported in 2004 Alld. C.J. 76 wherein also this Court has held that the revisional court is not empowered to set aside the order passed by the trial court setting aside the ex parte decree.
Learned counsel for the respondents has argued in reply that the petitioner cannot say that he did not have the knowledge of the decree on the grounds firstly the amin had visited the house of the petitioner, secondly the notice had been sent by post and thirdly a criminal case was going on in which he was amongst the parties and a decree had been passed in a partition suit. However the revisional court itself has a returned finding that it cannot be said that all these modes can be said to have established the fact that the petitioner had gained knowledge through three modes.
On the other hand, the learned counsel for the petitioner has rightly contended that the moment, the petitioner gained knowledge of the passing of the ex parte decree, he moved a restoration application within a period of 30 days, which was rightly allowed by the trial court.
The contentions of the learned counsel for the petitioner are well founded. The suit itself was filed in the year 1984 and is yet to be decided finally on merits. The revisional order dated 2.5.1997 contains an error of law, which is liable to be set aside by this Court. The revisional order is thus set aside. The matter is remanded to the trial court for decision afresh on merits, after giving all parties a proper opportunity of hearing. The matter before the trial court shall be concluded expeditiously, preferably within a period of one year and it is also directed that the parties before the trial court will not be allowed any frivolous or unnecessary adjournment. The proceedings in the suit shall commence immediately on production of a certified copy of this judgment.
The writ petition is allowed as above. There will be no order as to costs.
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