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SMT.GUJRATI DEVI & OTHERS versus THE VIII ADDL.CIVIL JUDGE,GORAKHPUR & OTHERS

High Court of Judicature at Allahabad

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Smt.Gujrati Devi & Others v. The Viii Addl.Civil Judge,Gorakhpur & Others - WRIT - C No. 35436 of 1996 [2007] RD-AH 12639 (23 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 28

Civil Misc. Writ Petition No. 35436 of 1996

Smt. Gujrati Devi and others Vs. The VIIIth Additional Civil Judge, Gorakhpur and others

~~~~

Hon. Dilip Gupta, J.

I have heard the learned counsel for the petitioners. Learned counsel for the respondents is not present even though the list has been revised.

This petition has been filed for setting aside the order dated 23.5.1995 passed by the learned VIIIth Additional District and Sessions Judge, Gorakhpur by which the order dated 16.10.1993 passed by the learned IInd Additional Civil Judge, Gorakhpur allowing the application filed by the defendant under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as CPC) was set aside.

The records of the writ petition indicate that respondent No.3 Shiv Pujan filed Original Suit No. 367 of 1992 for partition impleading Chintamani Upadhyaya as the defendant. The Court proceeded in the suit after drawing presumption about service of notice on the defendant under Order 5 Rule 19-A  CPC. The suit was thereafter decreed ex parte by the judgment and decree dated 24.5.1993.

Chintamani Upadhyaya then moved an application under Order 9 Rule 13 CPC on 13.8.1993 for setting aside the ex parte decree dated 24.5.1993. It was mentioned in the application that the applicant had no knowledge about the filing of the suit and nor had he received any notice or summons from the Court and it was only on 27.7.1993 that he came to know about the filing of the suit when the file was inspected by him. It was also stated that after he heard from the plaintiff that he had obtained some decree for half portion of the house in the 3rd week of July,  1993 (wrongly mentioned as January) that the applicant contacted his lawyer on 26.7.1993 who advised him to make inspection of the records which was then done on 27.7.1993. A prayer was, therefore, made in the application for setting aside the judgment and order dated 24.5.1993.

The Trial Court by the order dated 16.10.1993 allowed the application. It noticed that in the application it was stated that it was in the 3rd week of January, 1993 that he learnt from the plaintiff about some decree but subsequently an application supported by an affidavit was moved for amendment of the application for replacing January with July. The Trial Court, however, rejected this application on the ground that it was not supported by the affidavit of Chintamani Upadhyaya but by the affidavit of one Santosh Kumar. The Court also observed that by the order dated 29.1.1993 service upon the defendant was deemed sufficient under Order 5 Rule 19-A CPC as the Registered letter had not returned back. The Court, however, did not believe that the defendant had no knowledge of the Suit since the plaintiff and the defendant were real brothers. However, the Court also observed that since the Suit was for partition of the property of the real brothers and the service of notice upon the defendant was presumed to be sufficient as the Registered letter had not returned back, interest of justice demanded that the partition Suit should be decided on merits and, therefore, in such circumstances, the Court allowed the application on payment of cost of Rs. 500/- which was to be deposited by 26.10.1993. The defendant deposited the cost on 22.10.1993.

The plaintiff then filed a Revision against the order dated 16.10.1993. The Revisional Court after commenting about the mention of the month January,  1993 in the application filed under Order 9 Rule 13 CPC observed that the Trial Court had rightly rejected the application for amendment as it was not supported by the affidavit of Chintamani Upadhyaya but by an affidavit of some other person. The Revisional Court, therefore, observed that if the defendant had acquired knowledge of the judgment in the month of January, 1993 there was no occasion to file the application under Order 9 Rule 13 CPC in the month of August,  1993 and the application was barred by limitation. The Revisional Court also observed that if the application was barred by limitation, the Trial Court was not justified in allowing the application in the interest of justice because such a power does not exist under Order 9 Rule 13 CPC. The Revisional Court also observed that the finding recorded by the Trial Court that since both the brothers were residing in the same house, it should be presumed that the defendant had knowledge of the pendency of the Suit, suffered from no infirmity.

Learned counsel for the petitioners submitted that the finding recorded by the Revisional Court that the application was barred by limitation is not correct as the defendant acquired knowledge of the Suit only on 27.7.1993. He, therefore, submitted that the application was within time as it had been moved within 30 days on 13.8.1993 and in such circumstances, the Revisional Court was not justified in rejecting the application. He further submitted that once the discretion had been exercised by the Trial Court in allowing the application filed under Order 9 Rule 13 CPC, the Revisional Court committed an illegality in interfering with the discretion exercised by the Trial Court.

It is strange that both the Courts below have placed so much of emphasis on the mention of the date 'January' in the application filed by the defendant under Order 9 Rule 13 CPC.  A bare perusal of the application clearly indicates that there was an apparent mistake because it had been stated in the application filed under Order 9 Rule 13 CPC that it was only after hearing the statement of the plaintiff that the judgment had been given in his favour in the partition Suit that the defendant contacted his counsel on 26.7.1993. The Suit was decreed ex parte in the month of May, 1993 and,  therefore,  the plaintiff could not have stated in the month of January, 1993 that the Suit had been decreed in his favour. In such circumstances, the application filed by the defendant for amendment by replacing the month January with July should have been allowed and should not have been rejected on the technical ground that the affidavit filed in support of the application was not that of Chintamani Upadhyaya. The application clearly mentions that after hearing the statement of the plaintiff about ex parte decree in the third week of July, 1993 (wrongly mentioned as January),  the defendant immediately contacted his lawyer on 26.7.1993 and after inspection of the file on 27.7.1993 filed the application within 30 days on 13.8.1993. The application was, therefore, clearly within time as the limitation had to be calculated from the date of knowledge of the ex parte decree. In such circumstances,  the Revisional Court fell in error in holding that the application was filed beyond the period prescribed and,  therefore,  should have been rejected by the Trial Court.

This apart,  both the Courts below have committed an error in holding that since the defendant was the real brother of the plaintiff,  it should be presumed that he had knowledge of the pendency of the Suit since they were residing in the same house. Such a presumption had been drawn by both the Courts below without there being any material on the record to indicate that the defendant had knowledge of the pendency of the Suit. The Trial Court had drawn presumption about service under Order 5 Rule 19-A CPC as the Registered letter had not returned back. There was nothing on the record which could have conclusively established that the defendant had knowledge about the pendency of the Suit.

The Trial Court had allowed the application filed by the defendant under Order 9 Rule 13 CPC after imposing a cost of Rs. 500/-. The Revisional Court, in such circumstances, should not have interfered with the discretion exercised by the Trial Court particularly when a liberal view should be adopted by the Courts so as to do complete justice between the parties.

The order passed by the Revisional Court,  therefore,  cannot be sustained.

The writ petition is allowed. The order dated 23.5.1995 passed by the learned VIIIth Additional District and Sessions Judge, Gorakhpur is set aside. Interim order, if any, stands vacated.

Dt/- 23.7.2007

Sharma


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