A suit to set aside an ex parte decree obtained by fraud is maintainable notwithstanding the fact that it has not been preceded by an application under Order 9, Rule 13 of the Code of Civil Procedure.

S.K. Dubey, J.

1. This is a defendant's second appeal against the Judgment and decree which set aside the ex parte decree dated 29-3-1976, for eviction, as obtained by fraud, passed in civil suit No. 121-A/76 by Civil Judge Class-II, Lahar.

2. Brief facts leading to this appeal are thus : Landlord Naraindas and his son Balkrishan instituted a civil suit against the respondent/tenant for ejectment and arrears of rent of Rs. 600/- and mesne profits alleging therein that the respondent is a tenant in the suit accommodation on a monthly rent of Rs. 60/-, who has defaulted in making payment of rent due in spite of notice of demand and has not handed over the possession of the accommodation after the termination of the tenancy. The Court ordered to issue summons in the ordinary manner as well as by registered A/D post (R.A.D.) specifying the date of appearance as 19-9-1972. The summons (Ext. P-3) without the seal of the Court and a copy of the plaint was issued on 12-9-1972 for sending it by R.A.D. which was delivered at the post office on 19-9-1972. This R.A.D. envelope (Ext.P-4) was delivered to the tenant on 23-9-1972. As the summons was not received back on the date fixed, i.e., on 19-9-1972, the Court adjourned the case to 30-9-1972 awaiting service. On 30-9-1972 too service was not received back, hence, the case was adjourned to 18 -10-1972, on that date the Presiding Officer was on leave, the Court Reader recorded in the proceeding that notice after R.A.D. service has been received, and fixed the case for orders on 19-10-1972. The Presiding Officer accepted the service and ordered to proceed ex parte. After recording ex parte evidence the suit was dismissed. Aggrieved of that landlord preferred an appeal No. 32/73, of which notice was issued to the tenant. Appellate Court allowed the appeal and remitted the case to the trial Court with a direction to give an opportunity to the appellant/landlord to prove notice of termination of the tenancy. The appellate Court while remitting the case neither directed the tenant to appear in the suit nor appointed any date for appearance of the parties to the suit before the Court, to which the case was remitted. After remand the Court after re-registering the suit ordered issue of summons to the parties to the suit, fixing the date as 24-2-1976 for appearance but, of this date no summons was issued. On 24-2-1976 the counsel of the landlord appeared, then, the Court fixed the case for recording of ex parte evidence on 18-3-1976 observing that the tenant is already proceeded ex parte. The Court after recording of ex parte evidence passed a decree on 29-3-1976 for eviction and arrears of rent.

3. The aforesaid decree was put in execution. Having received the notice the tenant instituted a civil suit No. 87/80 (Old No. 41/78) in the Court of Additional Civil Judge Class-II, Lahar, against the landlord for setting aside the ex parte decree, as obtained by fraud by the plaintiffs misleading the Court by suppressing the fact of non-service of summons so as to keep the defendant in ignorance of the suit and deprive him of his legitimate right to defend the suit. The landlord challenged the maintainability of the suit contending that the tenant having not applied under Order 9, Rule 13, Civil Procedure Code the suit is not maintainable, as no fraud was practised on Court, mere irregularity of service in summons is no ground for setting aside the ex parte decree, as the defendant had the knowledge of the suit after service of summons by R.A.D., and was also noticed in appeal. The trial Court after appreciating the material and evidence adduced by the parties negatived the defence of the landlord and passed the decree dated 20-11-1980 setting aside the ex parte decree, as obtained by fraud. Against this the landlord/defendant preferred an appeal No. 100-A/80 which was dismissed on 11-9-1982 by the Second Additional Judge to the Court of District Judge, Bhind.

4. Against this decree the second appe