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2011 Supreme(All) 327
ALLAHABAD HIGH COURT
Rajiv Sharma, J.
Vidya Sagar and others -Appellant
Versus
Addl.District Judge, Court No.2, Lucknow and others -Respondent
W.P. No. 510 (M/S) of 2006
Decided On : 04-02-2011
Counsel for the Petitioners:Mohd.Arif Khan and Mohiuddin Khan., Counsel for the Respondents: M.A.Khan, Rakesh Pandey and C.S.C.
Decrees passed for the defendant's default in filing written statements under Order VIII Rule 10 are considered ex-parte decrees and the application under Order IX Rule 13 is maintainable.
Headnote:
Ex-parte Decree - Civil Procedure - Order VIII Rule 10, Order IX Rule 13, Code of Civil Procedure
Fact of the Case:
The petitioners challenged orders upholding ex-parte decrees against them. The court examined whether the decrees passed under Order VIII Rule 10 of the Code of Civil Procedure were ex-parte decrees and whether the application under Order IX Rule 13 was maintainable.
Finding of the Court:
The court found that the decrees passed for the petitioners' default in filing written statements were indeed ex-parte decrees and held that the application under Order IX Rule 13 was maintainable. The court quashed the impugned orders and directed the trial court to decide the suit on merits expeditiously.
Issues: The main issue was whether the decrees passed under Order VIII Rule 10 were ex-parte decrees and whether the application under Order IX Rule 13 was maintainable.
Ratio Decidendi: The court held that decrees passed for the defendant's default in filing written statements under Order VIII Rule 10 were ex-parte decrees and that the application under Order IX Rule 13 was maintainable.
Final Decision: The writ petition was allowed, and the impugned orders were quashed. The trial court was directed to decide the suit on merits expeditiously, provided the petitioners paid a sum of Rs. 8000 as costs within three months.
Heard Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohiuddin Khan, learned Counsel for the petitioners, Sri Rakesh Pandey, Counsel for the opposite party No.3 and Standing Counsel for the State.
2. By means of instant writ petition, the petitioners have assailed the orders dated 16.12.2005 passed by the opposite party No.1-Additional District Judge, Court No.2, Lucknow, upholding the order dated 3.2.1997 (Annexure No.7) and the order dated 3.1.1994 passed by the opposite party No.2-IInd Additional Civil Judge, Lucknow.
3. Brief facts, giving rise to the instant writ petition, are that opposite party No.-3-K.S. Rawat filed a suit for possession by demolition of the constructions, which was registered as Regular Suit No. 289 of 1986, against the petitioners and opposite parties Nos. 4 to 6, inter-alia stating therein that he had purchased the plot No. 241, measuring 0.03 biswas through a registered sale deed from one Smt. Punia and was enjoying possession but the petitioners had forcibly took the possession and raised boundary wall thereon. In the suit proceedings, notice was issued but as opposite party No.3 did not give correct address of the petitioners and as such, notice was not served upon the petitioners. Subsequently, service was effected on the petitioners through publication. Ultimately, the said suit was decreed ex parte on 23.3.1990.
4. On coming to know about the ex-parte decree dated 23.3.1990, petitioners moved an application under Order IX Rule 13 of the Code of the Civil Procedure, which was registered as Misc. Case No. 14-C of 1990, for recalling the aforesaid order dated 23.3.1990. The Additional Civil Judge, Lucknow, on being satisfied with the cause shown in the recall application, vide order dated 5.11.1993, set-aside the ex-parte decree dated 23.3.1990 and restored the Regular Suit No. 289 of 1986 to its original number and directed the petitioners/defendants to file their written statement prior to 23.11.1993.
5. Counsel for the petitioners has submitted that petitioners/defendants could not file their written statement prior to 23.11.1993 as their Counsel had gone out of station and as such, the case was fixed for filing written statement for 3.1.1994. On 3.1.1994, the petitioners/defendants filed an application for adjournment but the Additional Civil Judge, Lucknow, while rejecting the adjournment sought by the petitioners, vacated the stay order, proceeded under Order VIII Rule 10 of the Code of the Civil Procedure and further decreed the suit ex-parte. Consequently, petitioners were directed to deliver the possession of the land in question to the opposite party No.3, failing which, possession will be given through the Court.
6. Under these circumstances, petitioners filed another application for recall of the ex parte decree dated 3.1.1994 under Order IX Rule 13 of the Code of Civil Procedure. The Additional Civil Judge, Lucknow, rejected the said application for recall by the order dated 3.2.1997 on the ground that the order dated 5.11.1993 was conditional one and the ex-parte decree dated 23.3.1990 was set-aside subject to the condition that the petitioners/defendants should file their written statement prior to 23.11.1993, which they had failed to comply.
7. Aggrieved by the aforesaid order dated 3.2.1997, petitioners/defendants filed an appeal, which was registered as Misc. Appeal No. 44 of 1997. In appeal it was urged that the order dated 5.11.1993, was not a conditional one and further a litigant cannot be penalized for the inaction or negligent on the part of his Counsel. The Additional District Judge, Lucknow, vide order dated 16.12.2005, rejected the appeal and held that while decreeing the suit filed by the opposite party No.3, the trial court had proceeded under Order VIII Rule 10 of the Code of Civil Procedure and as such the application made by the petitioners under Order IX Rule 13 of the Code of Civil Procedure was not maintainable.
8. Feeling aggrieved by the orders d
