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Smt. Nirmala Devi v. Ist Additional District Judge, Chandauli And Others - WRIT - C No. 25728 of 2006 [2006] RD-AH 9365 (10 May 2006)


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                                                                                                        Court No. 23

Civil Misc. Writ Petition No. 25728 of 2006

Smt. Nirmala Devi............................................................................Petitioner


Ist Addl. District Judge, Chandauli and others............................Respondents


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the petitioner.

The petitioner challenges the order of the trial court dated 10/2/2003 and also the order of the appellate court dated 23.3.2006 whereby petitioner's application under Order IX Rule 13 C.P.C. for setting aside the exparte decree dated 25.2.2000 has been dismissed.

The learned counsel for the petitioner contends that the suit was filed in the year 1992. There was no personal service of the summons and instead  service by refusal had been held to be sufficient service. The knowledge of exparte decree was had by the petitioner only on 12.12.2000 when a certified copy of that decree was filed in a matter before revenue court in which both the parties were contesting against each other. It is only thereafter that the the application under Order IX Rule 13 C.P.C. dated 15.12.2000 was given before the trial court. It is further contended that the courts below have wrongly held that the petitioner had put in appearance before the trial court way back in the year 1992 through counsel and had filed her Vakalatnama. The Vakalatnama on the record of the trial court is a forged one and it should not have been taken by the courts below to be a relevant document for the purposes to pass an order and reject the petitioner's prayer for setting aside the exparte decree. The learned counsel, in support of his contentions, has cited case law of Ramji Dass and others Vs. Mohan Singh, 1978 ARC 496 and N. Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SC 3222.

From the facts and circumstances as appearing in the case and from the documents it is demonstrated that the suit was instituted in the year 1992 and the Vakalatnama on behalf of the petitioner-defendant was filed in the same year. The proceedings in the suit went on and when no written statement was filed, the suit was decreed exparte. The fact that the petitioner did not file any Vakalatnama nor did she put her signatures on such paper authorizing any counsel to represent her in the case, had though been pleaded in her petition, but it did not find substantiation by cogent piece of evidence. The petitioner did not obtain any affidavit of the counsel shown to have represented her in the case before the court to support her pleading nor did she obtain any report by way of expert opinion reflecting  the fact that the signatures of the counsel as well as of the petitioner on the said Vakalatnama were forged and the document itself was, thus, a forged paper. Simple statement in petitioner's affidavit was not sufficient to prove her contentions that the Vakalatnama was a forged document. The petitioner's appearance in the trial court through this Vakalatnama had permitted the further proceeding in the suit to go on and as such without any cogent evidence on record, the genuineness of that Vakalatnama cannot be doubted. The aforesaid cited case of  Ramji Dass and others (Supra) is definitely distinguishable on the facts of this case. It is true that in the said case the exparte decree was set aside by the Hon'ble Apex Court after eight years of its passing. The facts of the said case are not detailed in the judgment, but the Court has found that the High Court in exercise of its revisional jurisdiction under Section 115 C.P.C. was not justified to set aside the order of the trial court well as the order of the District Judge passed in revision confirming the order of the trial court. The two courts had already exercised its jurisdiction in favour of hearing both the parties before the final disposal of the suit and that discretion was not found by the Hon'ble Apex Court worth interference by the High Court in its revisional jurisdiction and in that view of the matter only it was held that the court's discretion should be exercised in favour of hearing the parties and not to shut out the hearing. In this case the defendant-petitioner had put in appearance in the suit way back in the year 1992 through her counsel R.P.Singh. The Vakalatnama so filed on record when could not be proved by the petitioner to be a forged document as alleged by the petitioner, the courts below have not exercised their jurisdiction in favour of the petitioner-defendant and, thus, sitting in writ jurisdiction this Court would be loath to interfere against such orders of the lower courts.

As regards the other case of N. Balakrishnan (Supra), the delay in moving the application for restoration of the suit under Order IX Rule 13 C.P.C., the trial court had found the explanation given by the defendant-applicant as satisfactory and the High Court had reversed that order of the trial court. Here, the two courts below were of the concurrent view that the explanation given by the petitioner for the delay in moving the court for setting aside the exparte decree was not duly substantiated by cogent piece of evidence. Therefore, the principle of that case also would not be applicable on the facts of this case.

The courts below have, therefore, very rightly found that the petitioner had put in appearance in the court and the Vakalatnama was filed on record and she had no ground to say that no knowledge of the exparte decree could be had by her till 12.12.2000. In the aforesaid view of the matter if the courts below have rejected the petitioner's prayer for setting aside the exparte decree after condoning the delay in filing the application, I do not find any justifiable reason to interfere in the orders in writ jurisdiction.

The petition, having no force, is hereby dismissed.




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