The court emphasized the necessity for trial courts to consider the circumstances of defendants, particularly in rural contexts, when evaluating applications to set aside ex parte decrees.

JUDGMENT

Mr. Anil Kshetarpal, J.

The petitioners were defendants in a suit filed for grant of decree of declaration that the plaintiffs are co-owners to the extent of half share of the joint property. On 18.02.2010, the aforesaid suit was ex party decreed. An application filed by the petitioners under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") to set aside ex party judgment decree, has been dismissed by both the Courts below. The correctness of the aforesaid order is challenged in this revision petition.

2. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook along with the requisitioned record.

3. On the one hand, the learned counsel representing the petitioners while drawing the attention of the Court to various zimni orders (daily orders), passed by the trial Court contended that the petitioners also filed application under Order IX Rule 7 of the CPC to set aside ex party proceedings during the pendency of the suit, which was never decided by the trial Court. Thereafter, the petitioners also filed an application for setting aside ex party judgment decree, which has also been wrongly dismissed by the Courts below.

4. On the other hand, learned counsel representing the respondents submits that both the Courts on appreciation of evidence have concurrently held that the petitioners have failed to furnish sufficient explanation for non-appearance. Hence, this Court should not interfere. While highlighting that the application for setting aside ex party judgment and decree was filed after a period of 1 year and 8 & ½ (half) months. He further submits that no application for condonation of delay was filed.

5. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.

6. As many as 14 plaintiffs filed suit against as many as 19 defendants. The plaintiffs prayed that they are owners to the extent of half share of the property by virtue of sale deed dated 07.01.1958, whereas, it is the case of the petitioners that they purchased the property vide registered sale deed No. 1671 on 17.07.1956. It is also highlighted that on the basis of the registered sale deed dated 17.07.1956, mutation in favour of the defendants was entered into.

7. In the grounds of revision, the petitioners have extracted various zimni orders passed by the trial Court on various dates of hearing, which are reproduced as under:-

09.12.2003

"As per report defendants No.2 to 16, 18, 19 served but on calling the case time and again none (not legible) on behalf of these defendants. As such defendant No.2 to 16, 18, 19 are proceeded ex party. As per report defendant No. 17 does not reside at the given address. Plaintiff is directed to file PF/CA of defendant No. 17 within three days and thereafter defendant No. 17 be summoned for 04.02.2003 for which date defendant No. 17 shall file w/statement. Plaintiff has sought relief against defendants No.2 to 6, 15, 16, 18 and 19 restraining them from alienating of suit property. As the defendants No.2 to 6, 15, 16, 18 & 19 are proceeded against ex party. As such defendant No.2 to 6, 15, 16, 18 & 19 and plaintiff is directed to maintain status-quo of suit property as detailed in the head note of the plaint, except in due course of law till 04.02.2004."

04.02.2004

"As per report PF/CA not filed for defendant No. 17 by the plaintiff. As such defendant No. 17 could not be summoned. Plaintiffs directed to file PF/CA of defendant No. 17 within three days and thereafter defendant No. 17 be summoned for 11.02.2004 for which date defendant No. 1 shall file written statement. Status quo is extended till then."

18.05.2004

"Notice issued to defendant No. 17 received back with report of refusal. Let service of defendant No. 17 be effected vide munadi and affixation on depositing munadi fee for 08.09.2004."

The petitioners moved application for setting aside ex part