JUDGMENT :

1. Heard learned counsel for the petitioners Mr. Sanjay Kumar Tiwari. However, the respondents did not appear inspite of valid service of notice.

2. This writ petition has been filed under Article 227 of the Constitution of India for quashing the order dated 18.09.2017 passed by the learned Additional Civil Judge (Junior Division), Garhwa in Original Title Suit No. 28 of 2016 (hereinafter called as impugned order) whereby and whereunder, the learned Additional Civil Judge (Junior Division) has rejected the application of petitioners/defendants under Order 9 Rule 7 read with Section 151 CPC.

3. Factual matrix giving rise to this petition is that the respondent no. 1/plaintiff has instituted the aforesaid Title Suit against present petitioners/defendant nos. 1, 3 and 4 and proforma defendants nos. 2, 5 and 6/proforma respondent nos. 2, 3 and 4 seeking declaration of their right, title and share in the suit land and further declaration that the deed of gift executed in favour of the defendants/petitioners in the year 1986 is void, ab-initio and inoperative, conferring and conveying no title.

Argument on behalf of the petitioners:

3. Learned counsel for the petitioners assailing the impugned order has submitted that neither summons through ordinary process nor the registered summons were ever received by any of the defendants and the publication of summons in newspaper also could not be known to the petitioners. The petitioners recently got knowledge through rumor in the village about ex-parte proceedings in the said suit against them and they promptly appeared before the court below and filed their applications for setting aside ex-parte proceedings, but the learned court below without assigning any valid reasons and without considering the provisions of order 9 Rule 7 CPC not only dismissed the petition for recalling the ex-parte order but also debarred them from filing their written statement. The impugned order is absolutely illegal and devoid of any reasons. Hence, fit to be set aside and the petitioners may be provided opportunity to file their written statement to address and contest the suit on merits.

4. On the other hand, no one has appeared on behalf of the plaintiff/respondent as well as proforma respondents to rebut the contentions of the learned counsel for the petitioners. However, it is apparent from the impugned order that the stand of the plaintiffs/respondents while refuting the petition filed by the petitioners is that the summons have duly been served upon the defendants through Nazarat as well as through registered post but they had refused to take summons or registered post with a view to avoid appearance and inspite of publication of summons in local newspaper Dainik Bhasker, they did not appear. The defendants were keeping watch to the proceeding of the case and just after the court proceeded ex-parte the present petition was filed on false plea which is fit to be rejected.

Point for determination:

5. The only question for determination in this case is as to impugned order suffers from any illegality or infirmity calling for any interference by way of this petition under Article 227 of the Constitution of India?

6. Before imparting my judgment on above point, relevant provisions for appearance and consequences of non-appearance in a suit and remedy, therefore, has to be discussed.

Order 9 Rule 6 C.P.C.

Rule 6: The procedure when only plaintiff appears- (1) where the plaintiff appear and the defendant does not appear when the suit is called on for hearing, then –

(a) When summons duly served- if it is proved that the summons was duly served, the court may make an order that the suit be heard ex-parte;

(b) When summons not duly served- if it is not proved that the summons was duly served, the court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time – if it is proved that the summons was served on the defendant but not in sufficient time to enable