Allowed

Mohan Lal v. Athar Mohammad and Another

Allahabad HC12 Mar 2019WRIC/36321/2001

Case brief

AI extract

What is this about?

The High Court allowed a writ petition setting aside impugned orders rejecting a recall application against an exparte judgment. The Court held that the lower courts relied on unreliable affidavit materials to determine the petitioner's knowledge, constituting a manifest error of law under Order IX Rule 13 CPC.

What did the court decide?

The exparte judgment and decree dated 31.5.1996, order dated 13.9.2000, and order dated 17.7.2001 were set aside. O.S. No. 655 of 1994 was restored to its original number.

Mohan Lal Vs Athar Mohammad and Another — Property and Title | Allahabad HC (2019)

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Court No. - 59

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Case :- WRIT - C No. - 36321 of 2001

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Petitioner :- Mohan Lal Respondent :- Athar Mohammad And Another Counsel for Petitioner :- S.U. Khan,J.S.Baghel,M.K.Gupta,Mahtab Alam,Mautab Alam,Pankaj Agarwal Counsel for Respondent :- S.C.,Amar Nath Bhargava,Ramesh Pundir,Rekha Pundir

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri Shubham Agarwal, Advocate holding brief of Sri Pankaj Agarwal, learned counsel for the petitioner/applicant and Sri R.K. Tiwari, Advocate holding brief of Sri Amar Nath, learned counsel for the respondents. Order on Amendment Application No.7 of 2018

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The amendment application is not opposed by learned counsel for the respondents. Therefore, amendment application is allowed.

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Necessary amendment be carried during the course of the day.

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Writ petition is converted into petition under Article 227 of the Constitution of India.

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Order on Petition

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This petition has been filed praying to set aside the impugned exparte order dated 31.5.1996, passed by the Additional Judge, Small Causes Act, Aligarh in O.S. No.655 of 1994, order dated 13.9.2000 rejecting the restoration application of the petitioner and the order dated 17.7.2001 in Misc. Civil Appeal No.118 of 2000 (Mohan Lal Vs. Athar Mohammad), passed by 12^th Additional District and Sessions Judge, Aligarh dismissing the appeal of the petitioner.

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Briefly stated the facts of the present case are that according to the petitioner, the disputed property and adjoining property were originally owned by one Sri Anisur Rahman and six other persons. In the year 1971, six cosharers executed sale deeds in favour of the petitioner. Anisur Rahman executed an agreement to sell in favour of the petitioner. The respondent no.2 was tenant in the disputed property before it was purchased by the petitioner. After purchasing the property, the petitioner filed O.S. No.301 of 1982 against the respondent no.2 herein for his ejectment. The said suit was decreed exparte

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by judgment dated 16.1.1988 against which the respondent no.2 herein filed Civil Appeal No.96 of 1988 alongwith delay condonation application which was rejected on 27.9.1990 and the appeal was dismissed as time barred on 13.7.1990. The recall application filed by the respondent no.2 herein being Misc. Case No.6 of 1988 was also rejected against which he filed a Civil Misc. Appeal no.52 of 1988 which was dismissed by the court of Second Additional Civil Judge (S.D.), Aligarh on 13.8.2000.

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In the meantime, the respondent no.2 herein/tenant filed a suit against the petitioner being O.S. No.130 of 1993 to restrain the petitioner from ejecting him until the decision of court on merit on the cancellation of decree passed in the aforesaid O.S. No.301 of 1982. As per the averments mede in paragraph 5 of the writ petition, the said suit is pending.

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It further appears that thereafter, O.S. No.655 of 1994 was filed by one Sri Athar Mohammad (respondent no.1 herein) against erstwhile owner Sri Anisur Rahman setting up the case that Sri Anisur Rahman had orally gifted him the disputed property on 27.9.1970. The said suit was filed for cancellation of sale deeds executed by six co-sharers in favour of the petitioner as aforesaid. Later on, by way of amendment, the petitioner was impleaded as defendant no.3. In the aforesaid suit no.655 of 1994, the tenant, Har Prasad filed a written statement. The suit was decreed exparte by judgment dated 31.5.1996. According to the petitioner, he gained the knowledge of the aforesaid exparte decree on 14.9.1999 and therefore, he filed an application for recall of the exparte judgment and decree under Order IX Rule 13 C.P.C. which was registered as Misc. Case No.18 of 1999 (Mohan Lal Vs. Athar Mohammad) and it was rejected by the court below by the impugned order dated 13.9.2000. Against this order, the petitioner herein filed Civil Appeal No.118 of 2000 which has been dismissed by the impugned order dated 17.7.2001 passed by the Additional District and Sessions Judge, Court No.12, Aligarh.

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Learned counsel for the petitioner submits that there was no evidence of

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service of any notice or summon of O.S. No.655 of 1994 and the petitioner was having no knowledge of the impugned judgement and decree dated 31.5.1996 prior to 14.5.1999 and as such there was no justification to reject the application.

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Learned counsel for the respondents supports the impugned judgments and orders.

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I have carefully considered the submissions made by learned counsel for the parties.

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Perusal of the impugned order dated 13.9.2000 rejecting the recall application under Order IX Rule 13 C.P.C. and the order dated 17.7.2001 dismissing the Misc. Civil Appeal No.118 of 2000 clearly reveal that merely on the basis of some averments made in some affidavit filed by the respondent Har Prasad in O.S. No.130 of 1993, the courts below have drawn interference that in the year 1998, the petitioner gained the knowledge of the exparte judgment and decree in O.S. No.655 of 1994. Perusal of findings recorded in the impugned order rejecting the application under Order IX Rule 13 C.P.C. and the impugned order passed in Misc. Appeal No.118 of 2000 would show that both the courts below itself recorded that description of O.S. No.655 of 1994 and date of exparte decision are not mentioned in the alleged affidavit filed by the respondent Har Prasad in O.S. No.130 of 1993. If this is the fact that the alleged affidavit of the respondent no.2 herein, which has been made basis to draw interference that the petitioner gained the knowledge of O.S. No.655 of 1994; was having neither of the date of judgment and decree nor the description of the suit being O.S. No.655 of 1994, then it can not be said by any imagination that the petitioner was having knowledge of the aforesaid exparte judgment and decree dated 31.5.1996. There was no reliable material before both the courts below to draw interference that the petitioner gained the knowledge of the exparte judgment and decree dated 31.5.1996 in O.S. No.655 of 1994 prior to the date mentioned by him in his recall application. Under the circumstances, both the courts below have committed manifest

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error or law to reject the recall application of the petitioner under Order IX Rule 13 C.P.C.

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In view of the above discussion, the petition is allowed . The impugned exparte judgment and decree dated 31.5.1996 passed in O.S. No.655 of 1994, order dated 13.9.2000 in Misc. Case No.18 of 1999 and order dated 17.7.2001 in Misc. Appeal No.118 of 2000 passed by the Additional District and Sessions Judge, Court No.12, Aligarh, are hereby set aside. O.S. No.655 of 1994 is restored to its original number. The court below shall proceed in accordance with law in the aforesaid suit.

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Order Date :- 12.3.2019 Vivek Kr.

Mohan Lal v. Athar Mohammad and Another

Case brief

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Mohan Lal v. Athar Mohammad and Another

Case brief

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