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Santosh v. Manki Devi & Others - WRIT - C No. - 54904 of 2007 [2007] RD-AH 17698 (13 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon. Dilip Gupta, J.

This petition has been filed for setting aside the order dated 23.5.2007 passed by the learned Additional District Judge, Ballia in Civil Misc. Appeal No. 269 of 2005 (Manki Devi Vs. Kailash Pati and others).

Original Suit No. 107 of 1983 was filed by Kailash Sinha, Rajendra Prasad and Surendra Prasad who have been arrayed as respondent Nos. 2,3 and 4 in this petition for a declaration that the compromise decree dated 7.9.1981 in Suit No. 143 of 1981 (Sita Ram and others Vs. Shashi Bhushan and others) be set aside and for claiming 1/5th share in the building in dispute.

The Trial Court decided the Suit by means of the judgment and order dated 27.7.2002 which was subsequently amended by the judgment and order dated 18.12.2002. Manki Devi filed an application for setting aside the ex parte judgment and order on the ground that she had not been served with the notice. The Trial Court rejected the application by the order dated 1.10.2005. Feeling aggrieved, she filed Civil Misc. Appeal No. 269 of 2004 which has been allowed by the order dated 23.5.2007 on payment of cost of Rs. 1000/-.

Learned counsel for the petitioner submitted that though service of notice upon Bhola Devi (defendant No.2 in the Original Suit) was deemed sufficient, yet she did not file any written-statement and, therefore, it was not necessary to substitute her heir and legal heir and, therefore, the Lower Appellate Court committed an error in allowing her application.

The Court below has given cogent reasons for allowing the substitution application as the address of Bhola Devi was not correctly mentioned and nor she was properly served and, therefore, presumption about service on her was not correct. The Court below has also found that notice was not served upon Manki Devi at the correct address. In such circumstances, the contention of the learned counsel for the petitioner cannot be accepted.

The writ petition is, accordingly, dismissed.

Dt/- 6.11.2007



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