The main legal point established in the judgment is that if a party leaves pairvi in a suit and an ex parte decree is passed, the party has the right to file an application under Order 9, Rule 13, CPC to set aside the ex parte judgment and decree.

R.N.Prasad, J.

1. Both the cases arise out of the order dated 23.12,2003 passed in Misc. Case Nos. 11/2003 and 12/2003, whereby the miscellaneous cases were dismissed on the ground that Title Suit No. 116/89 was decreed on 9.5.2003 on contest and, as such, the Court has no jurisdiction to set aside such decree. If the petitioners were aggrieved by the judgment, and decree passed in Title Suit No. 116/89 they could have filed an appeal against the said judgment and decree.

2. The relevant facts of the case are that Title Suit No. 116/89 was filed by the plaintiffs-opposite party for partition of their share in the joint family property, in which the mother of the petitioners was defendant No. 1, who died during pendency of the suit and, as such, the petitioners were substituted. The petitioners in C.R. No. 256/2004 appeared and also participated in the suit till framing of the issues and also filed an application for appointment of Pleader Commissioner, which was rejected. Thereafter, they left pairvi in the case. The petitioners in C.R. No. 127/2004 did not appear in the suit. The Court in such a situation fixed date for ex parte hearing and decreed the suit on 9.5.2003. The petitioners of C.R No. 127/2004 filed Misc. Case No. 12/2003 and the petitioners in C.R No. 256/2004 filed Misc. Case No. 11/2003 for setting aside the ex parte decree. The said miscellaneous cases have been dismissed by order dated 23.12.2003, as indicated above, on the ground that they are not-maintainable. Thus, the petitioners have filed the civil revision petitions for setting aside the order passed in the miscellaneous cases.

3. Since both the revisions arise out of same order notice was issued in C.R. No. 127/2004. Notices were served on the opposite party, Mr. Pushkar Narain Shahi appears on behalf of the plaintiff-opposite party No. 1 in both the cases and the rest did not appear in spite of the service of the notice.

4. The submission of the learned counsel for the petitioners is that the petitioners in C.R No. 127/2004, did not appear in the suit. The petitioners in C.R No. 256/2004 appeared in the suit and also participated till the framing of the issues and also filed a petition for appointment of Pleader Commissioner, which was rejected. However, thereafter they also left pairvi in the suit and, as such, the suit was decreed ex parte in the absence of the petitioners and, as such, the miscellaneous cases levied under Order 9 Rule 13, CPC are maintainable. The Court below was wrongly come to the conclusion that it was a contested decree and, as such, it has no jurisdiction to set aside such decree. If at all the petitioners were aggrieved by the judgment and decree, they could have preferred appeal against the said judgment and decree.

5. Learned counsel for the opposite party, however, contended that the petitioners had knowledge of the suit. The matter went upto to the Supreme Court. The petitioners were party in the Supreme Court cases. As they appeared in the Supreme Court, the petitioners in C.R. No. 127/2004 cannot say that they were not aware of the suit. The petitioners in C.R. No. 256/2004 appeared in the suit till framing of the issues and also filed an application for appointment of the Pleader Commissioner which was rejected and thereafter they left pairvi in the suit. According to the learned counsel, the petitioners had knowledge about the suit but knowingly they left the pairvi in the suit, and as such, the Court had no option but to decide the suit. Learned counsel also submitted that since the petitioners in C.R. No. 256/2004 appeared and also participated to some extent in the suit, as indicated above, it cannot be said that judgment and decree is ex parte and, as such, the Court below has rightly come to a conclusion that if at all the petitioners had any grievance they could have filed an appeal against, the said judgment and decree. He also contended that the revisions are not maintainable as the miscellaneous case