Order on Board

04/11/2024

1. With consent of learned counsel for the parties, the matter is heard finally.

2. This writ petition under Article 227 of the Constitution of India has been preferred by petitioners/defendants challenging the order dated 6-10-2021 (Annexure P-1) passed by the 8th Upper District Judge, Durg (CG) in Misc. Civil Appeal No. 54/2017, whereby learned appellate Court has upheld the order dated 15-11-2017 (Annexure P-8) passed by the 1st Civil Judge Class I, Bhilai 3, Distt. Durg in Misc. Case No. 10/2011, whereby learned trial Court has dismissed the application filed by the petitioners/ defendants under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code (henceforth, referred to as ‘CPC’).

3. Learned counsel for the petitioners/defendants would submit that Pachkoud (original plaintiff), who was father of the respondents, had filed a civil suit bearing No. 125A/2006 against Vinayak Datt Mishra (original defendant/father of petitioners) seeking possession, permanent injunction and damages of suit land bearing Khasra No. 267/185 area 0.08 dismil situated at village Charoda Patwari Halka No. 2, P.C. No. 2, under Revenue Circle Bhilai – 3, Tahsil Patan, Distt. Durg (CG). In aforesaid civil suit, original defendant Vinayak Datt Mishra entered his appearance and also filed written statement, issues were also framed, subsequently, he remained absent, therefore, exparte proceeding was initiated against him on 18-9-2007 and exparte judgment and decree (Annexure P-4) was passed on 30-10-2007. He would further submit that, execution application was filed by plaintiff, in which, notice was issued to the defendants for hearing of 13-3-2009. When that notice was served on them, then only, petitioners/ defendants came to know about exparte judgment and decree dated 30-10-2007 passed against them. Thereafter, they filed application on 20-3-2009 for obtaining certified copy of the judgment and decree dated 30-10-2007, which was received by them on 27-3-2009, thereafter, they filed application under Order 9 Rule 13 read with Section 151 of the CPC on 8-4-2009, which was rejected by learned 1st Civil Judge Class I, Bhilai-3, Distt. Durg in MJC No. 10/2011 vide order (Annexure P-8) dated 15-11-2017. The appeal filed by the petitioners bearing Misc. Civil Appeal No. 54/2017 against the order dated 15-11-2017 was also rejected vide impugned order dated 6-10-2021 (Annexure P-1). Hence, this petition has been filed.

3.1 Learned counsel for petitioners would further submit that, although exparte judgment and decree was passed against original defendant Vinayak Datt Mishra on 30-10-2007 and he died on 19-8-2010, but, petitioners were not aware about civil suit or execution proceedings, as the case was being contested by their father late Vinayak Datt Mishra. It is further submitted that the Advocate representing original defendant Vinayak Datt Mishra, did not inform petitioners’ father about exparte judgment and decree, therefore, he did not appear in civil suit, but as soon as he came to know about exparte judgment and decree, then immediately, he filed application seeking certified copy of necessary documents of civil suit, which was received by original defendant Vinayak Datt Mishra on 27-3-2009, thereafter, application under Order 9 Rule 13 read with section 151 of the CPC was filed on 8-4-2009. He further submits that aforesaid facts show bonafideness of original defendant Vinayak Datt Mishra, who has died on 19-8-2010. Thereafter, his Lrs are prosecuting the case. He prayed that this petition may be allowed, the order (Annexure P-8) dated 15-11-20217 passed by the trial Court in Misc. Case No. 10/2011 and impugned order (Annexure P-1) dated 6-1-2021 passed by the Appellate Court in Misc. Civil Appeal No. 54/2017 may be set aside and the Civil Suit No. 125A/2006 may be restored to its file. 4. Per contra, learned counsel for the respondents/plaintiffs would submit that original defendant Vinayak Datt Mishra himself