An ex-parte decree cannot stand if there is no valid proof of service of notice to the parties involved, emphasizing fairness and due process in civil proceedings.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Atanu Banerjee, learned counsel appearing for the petitioner and Mr. Ashish Verma, learned counsel appearing for the opposite party Nos. 3 to 5.

2. Notice upon rest of the opposite party Nos. 1 and 2 have already been served, however, they have chosen not to appear. With a view to provide one more opportunity to opposite party Nos. 1 and 2 the matter was adjourned on 24.03.2025 and further on 22.04.2025 in spite of that they have not appeared, as such this petition is being heard in absence of opposite party Nos. 1 and 2.

3. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 02.03.2024 passed by learned Civil Judge (Senior Division) – IX, Deoghar in Misc. Case No.75 of 2023 arising out of Original Suit No.34 of 2013 whereby the petition dated 26.09.2023 filed under Order – IX Rule 13 of CPC on behalf of the judgment debtor Nos.3 to 5 (respondent Nos.3 to 5) for setting aside ex-parte judgment dated 29.07.2022 and decree dated 10.08.2022 passed in Original Suit No.34 of 2013 by learned Civil Judge (Senior Division) – IX, Deoghar has been allowed and the said ex-parte judgment dated 29.07.2022 and decree dated 10.08.2022 passed in Original Suit No.34 of 2013 has been set aside and the said suit has been restored.

4. Mr. Atanu Banerjee, learned counsel appearing for the petitioner submits that the petitioner/plaintiff filed a plaint dated 22.03.2013 in the Court of learned Subordinate Judge, 1^st/ Civil Judge (Senior Division) – I, at Deoghar against one Sambhu Pujhar and four others for a decree directing defendants/proforma defendants simultaneously to execute and register sale deed in favour of plaintiff on acceptance of the balance consideration with delivery of possession of the suit property in favour of the plaintiff. He submits that the said suit was filed being Title Declaratory Suit No.34 of 2013 and it was alleged therein that acquisition of right, title and interest over the suit land and the cause of action on the date of execution and registration of the agreement for sale of the suit property between the plaintiff and the defendants in part performance of contract of sale of the suit property on 19.03.2012 and 26.03.2012, the date of sign and transmission through postal service of the registered legal notice on behalf of the plaintiff on 07.04.2012, when defendants gave reply and continuing thereafter. The schedule suit plot being an area of 14 acres 68 decimals appertaining to settlement plot No.295 in Mouza – Sirsa within Jamabandi No.19, Mohanpur Police Station in the District of Deoghar was the cause of action to institute the said suit. The summon was issued to the defendants and the defendant No.1 Shambhu Pujhar appeared and filed written statement denying the averments made in the plaint. The other defendants, who were also noticed, did not choose to appear despite issuance of notice through registered post on 26.09.2014. On 06.09.2014, the order was passed to post the case on 19.11.2014 with direction to plaintiff to comply the previous order. The order dated 02.03.2015, passed in Original Suit No.34 of 2013 recording a finding of valid service and to proceed ex-parte against defendant Nos.3 to 5 and thereafter the learned Court has proceeded in accordance with law and passed the judgment on 29.07.2022. On this ground, he submits that there is latches on the part of the opposite parties/defendants and the learned Court has rightly proceeded and by the impugned order the judgment and decree has been recalled and the suit has been restored which is causing prejudice to the petitione