Proper service of notice is essential for ex parte decrees; without sufficient evidence of notification, such decrees can be set aside under natural justice principles.

JUDGMENT :

Irshad Ali, J.

1. Heard Shri M.A. Khan, learned Senior Advocate assisted by Mohd. Aslam Khan, learned counsel for the petitioners and Shri Divesh Misra, learned Standing Counsel for the respondents-State and Shri Rajeiu Kumar Tripathi, learned counsel for the respondents assisted by Shri Ambrish Singh Yadav, learned Advocate.

2. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari quashing the impugned judgment and order dated 9.11.1997 passed by opposite party no.1 as contained in Annexure no.1 to the writ petition, with further prayer for issuance of a writ in the nature of Mandamus commanding the opposite parties except the opposite party no.4 not to interfere in the peaceful possession at the petitioner and also not to transfer the land in question to any one else.

3. Facts of the case are that the opposite party nos.2 and 3 filed a suit for declaration of their rights in respect of agricultural plot no.601(k), 601 and 639 situated at Village Gouri Tehsil and District Lucknow before the Sub-Divisional Officer, Lucknow and subsequently transferred to the court of Additional Sub Divisional Officer, Lucknow arraying the petitioners and opposite party nos.4 to 6 as defendants in the said suit. No notice or summons were ever served on the petitioner and opposite party no.4 to 6 and finally the suit was ex parte decreed.

The opposite party no.4 in the present writ petition was also arrayed as defendant alongwith the petitioners and he also moved application alongwith the petitioner under order 9 rule 13 C.P.C. for setting aside the ex parte judgment and decree dated 22.3.90 but since in connection with employment he is presently residing at Delhi, as such he had not been able to join as petitioner in the present writ petition and as has been arrayed as opposite party no.4 in the present writ petition.

In respect of these very agriculture plots the rights and title of the petitioners and opposite parties have been finally decided by consolidation authorities during the consolidation operation which took place in village in the year 1975 decided by the Consolidation Officer against which the opposite party nos.2 and 3 who went up in appeal which was dismissed by the Settlement Officer Consolidation of 5-5-75 and the revision of the opposite party nos.2 and 3 was also dismissed on 6.5.1977 by the Deputy Director, Consolidation and the final record of C.H. form 45 was prepared in the names of the petitioners and opposite party no.4. Thus, the matter between the parties become final as regard the right and title of the plots mentioned above ijn respect of which the suit out of which the present proceedings have been arisen was filed.

That the petitioners and the opposite party no.4 had no knowledge about the suit or about the ex parte judgment dated 22.3.1990 which for the first time came to their knowledge on 15.9.1991/17.9.1991 when the certified copy of the Khatauni containing the reference of the ex parte judgment and decree was brought on record in another Civil Suit No.385-1991 pending in the Court of Munsif Hawali, Lucknow which was instituted by opposite party nos.2 and 3 against the petitioner for a decree for permanent injunction. This was revealed when the petitioners appeared in the said civil suit their counsel Sri P.D. Verma, Advocate, Lucknow who inspected the file.

On getting this information on 15.9.91 the petitioners and opposite party no.4 got the file inspected of the case under Section 229(B) of the Act and it was found that the service on the petitioners were deemed sufficient on the basis of publication in the news paper 'Nav Jeevan'