IMPORTANT POINT
Setting aside ex-parte decree – Courts should not shut out cases on mere technicalities but rather afford opportunity to both sides and thrash out matter on merits – Court cannot let the party suffer due to negligent or fault committed by their Counsel.

JUDGMENT :

VIKRAM NATH, J.

1. Leave granted.

2. This appeal assails the final judgement and order passed by Allahabad High Court in Writ Petition No. 18990/2024 on 24.05.2022 whereby the High Court dismissed the Writ Petition and upheld the order of the District Judge, Etah in Civil Revision No. 53 of 2000. The District Court, Etah (“Revisional Court”) had allowed the Civil Revision filed by Respondent Prithvi Raj Singh under section 115 of Civil Procedure Code (“CPC”) against the order dated 29.04.2000 passed by Additional Civil Judge (Junior Division) Kasganj (“Trial Court”) in Civil Miscellaneous Case No. 33/1994. The Trial Court thereby had allowed the restoration application under Order IX Rule 13 and section 151 of CPC filed by the Appellant Dwarika Prasad. The High Court has effectively dismissed the restoration application, confirming the ex-parte decree dated 11.04.1994 passed in favor of Respondent.

3. The facts leading to the present appeal are stated below:

3.1. Respondent-Plaintiff Prithviraj Singh instituted a civil suit registered as O.S. No. 81 of 1988 seeking declaration of a sale deed as null and void on the ground of fraud played by the Appellant-defendant. Plaintiff averred that his grandfather Shri Guljari Lal was a bhumidhar with transferable rights of agricultural plot No. 315 area 0.66 Hectare, situated at Itwarpur, Pargana-Sahawar, District Etah and also of agricultural plot No. 141 area 0.34 Hectare situated at Village Bodha Nagria. In the name of providing treatment, Appellant-defendant Dwarika Prasad took the grandfather of plaintiff to Kasganj. On 16.01.1979 the appellant got a sale deed executed by his grandfather by way of fraud in his favour.

3.2. The Court of First Additional Munsif, Kasganj, Etah decreed the suit ex-parte by order dated 11.04.1994 on account of non-appearance of defendant and declared the sale deed in question to be void and unenforceable.

3.3. The Appellant-defendant filed restoration application under Order IX Rule 13 and Section 151 of CPC on 31.10.1994. He stated that he was uneducated, naïve and old aged person unable to understand Court proceedings; he had put full faith in his previous counsel Shri Ramgopal Singh. However, on 26.10.1994 the Respondent and his brothers publicly said to the Appellant that they have got the sale deed cancelled and have also got the name of the Appellant removed. As suspicion arose in the Appellant’s mind, he appointed Shri Ashok Kumar Verma as his counsel who inspected the file in the Revenue Court, Kasganj. The Appellant was informed about the ex-parte decree, on 27.10.1994. The Counsel for the Appellant found copy of the ex-parte decree the next day on 28.10.1994. Accordingly, on 31.10.1994 the Appellant filed the restoration application. The Appellant stated in the application that his previous counsel Shri Ramgopal Singh played fraud over him as he conspired with Respondent.

4. The Trial Court allowed the restoration application and set aside the ex-parte decree by order dated 29.04.2000. It found that the Appellant is illiterate and he has put thumb impressions wherever his counsel asked him to put. He was kept unaware of the legal proceedings by the previous counsel. Only after the revenue court rejected the proceedings initiated by the Appellant for mutation, the new counsel was appointed. As the new counsel came to know about the ex-parte decree, the restoration application has been filed. The Trial Court thus held that the Appellant cannot suffer due to errors of his counsel and it found it justifiable to provide full opportunity of hearing to the Appellant.

5. Thereafter on 10.05.2000, the Respondent filed Revision (Civil Revision No. 51 of 2000) under section 115 of CPC against the order of the Trial Court dated 29.04.2000. Respondent claimed that the restoration application is time barred and the Appellant had knowledge of ex-parte decree since beginning. The Additional District Judge at Etah allowed the Revision, holding that the Appel