Allowed

Bhawani Dutt and Anr. v. Manoj Kumar and Ors.

Rajasthan HC2 Dec 2019CW/18045/2012

Case brief

AI extract

What is this about?

High Court allowed writ petition challenging the dismissal of an application to set aside ex-parte order. Court held trial court erred in dismissing application as service of notice was improper due to wrong address mentioned in summons and directed trial court to allow participation in suit proceedings.

What did the court decide?

Order dated 12.10.2012 set aside; application under Order 9 Rule 7 CPC read with section 151 CPC allowed; petitioners permitted to participate in suit proceedings.

Bhawani Dutt and Anr. Vs Manoj Kumar and Ors. — Civil Procedure and Limitation | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 18045/2012

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Bhawani Dutt S/o Sh. Jhabarmal, aged about 49 years, B/C Soni, R/o Chirana, Tehsil Nawalgarh, Distt. Jhunjhunu (Raj.).

¶4

Shambhu Dayal S/o Sh. Jhabarmal, B/C Soni, R/o Chirana, Tehsil Nawalgarh, Distt. Jhunjhunu.

¶5

---Defendants/Petitioners

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Versus

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Manoj Kumar adopted son of late Sh. Chore Lal and his wfie late Patasi Devi, B/c Brahmin, R/o Ward No.8, Udaipurwait, Tehsil Udaipurwati, Distt. Jhujnjhunu.

¶8

----Plaintiff/respondent

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Ramesh Chandra S/o Sh. Nand Kumar, B/c Brahmin, R/o Sithal, Tehsil Udaipurwati, Distt. Jhujhunu (Raj.).

¶10

Smt. Manju Devi W/o Sh. Kailash B/c Mahajan R/o Udaipurwati, Tehsil Udaipurwati, Distt. Jhunjhunu (Raj.) Defendants/respondents.

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The Addl. District Judge (F.T.) No.1 Jhunjhunu.

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……...Performa Respondent

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For Petitioner(s) : Mr. Ambrish Vashistha

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Judgment

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02/12/2019

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This writ petition has been filed by the petitionersdefendants challenging the order dated 12.10.2012 whereby the application filed by them under Order 9 Rule 7 CPC read with section 151 CPC for setting aside the ex-parte order passed by the trial court was dismissed.

¶18

Brief facts of the case are that the plaintiff-respondent has filed a suit for cancellation of sale deed against the petitionersdefendants. The trial court proceeded ex-parte against the

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(2 of 4)

¶20

[CW-18045/2012]

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petitioners-defendants on 30.5.2007 as the petitioners-defendants failed to appear before the trial court despite service of notice.

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During pendency of the suit proceedings, petitionersdefendants filed an application under Order 9 Rule 7 CPC read with section 151 CPC which was dismissed by the trial court vide order dated 12.10.2012. Hence, this writ petition has been filed by the petitioners-defendatns challenging the order dated 12.10.2012.

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This Court while issuing notice to the respondent/s on 16.1.2013 passed the following order:-

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“Issue notice of the writ petition as also the stay application to the respondents both through normal process and registered post.

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Counsel for the petitioners is directed to file P.F. and notices, in two sets, along with registry charges.

¶26

Heard the counsel for the petitioners on the stay application.

¶27

Mr. Ambrish Vashishtha, appearing for the petitioners, submits that the petitioners as defendants in the plaint filed by respondent No.1, Manoj Kumar, have been fraudulently served. It is submitted that the address of the petitioners shown in the plaint has been given out as resident of village Chirana, Tehsil Udaipurwati, District Jhunjhunu, when in fact the address of the petitioners is village Chirana, Tehsil Nawalgarh, District Jhunjhunu. It is submitted that even the service on the wrong address is based upon affixation/pasting and in the process the address of the witnesses to the pasting of summons has not been recorded. Counsel submits that the petitioners are the bona fide purchasers from the co-defendant, Ramesh Chandra and presently are in possession of the property in dispute. He submits that there was no occasion whatsoever for the petitioners as defendants in Manoj Kumar’s

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(3 of 4)

¶29

[CW-18045/2012]

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plaint to not appear before the trial court, if served and allow the continuation of ex-parte proceedings. It is submitted that the trial court has overlooked the entire facts of the case only for reason of the suit having been filed in 2007 without anything more.

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Having heard the counsel for the petitioners, it is directed that further proceedings in suit No.52/2007, pending before the Court of Additional District Judge (Fast Track), Jhunjhunu, shall remain stayed till 12.02.2013.

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Put up on 12.02.2013.”

¶33

Counsel for the petitioners-defendants submits that the petitioners are the resident of village Chirana, Tehsil Nawalgarh, District Jhunjhunu, whereas, the trial court has issued notice to the petitioners-defendants on the address in which name of the Tehsil Udaipurwati has been mentioned in place of Tehsil Nawalgarh.

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Counsel further submits that due to wrong mentioning the address of the petitioners-defendants, the notices could not be served upon them and that was the reason of their non appearance before the trial court. Counsel further submits that in the interest of justice, the order passed by the trial court dated 12.10.2012 deserves to be set aside.

¶35

Counsel for the respondents submitted that the petitionersdefendants deliberately did not appear before the trial court and they were regularly watching the suit proceedings.

¶36

Counsel further submits that the petitioners-defendants moved an application at the fag end of the trial and trial court had rightly directed to initiate ex-parte suit proceedings.

¶37

Heard counsel for the parties and perused the record.

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(4 of 4)

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[CW-18045/2012]

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This writ petition filed by the petitioners-defendants deserves to be allowed for the reason firstly; a bare perusal of the notice (Annexure-1) issued by the trial court shows that the wrong address of the petitioners-defendants has been mentioned in the notices as the village of petitioners-defendants is situated in Tehsil Nawalgarh whereas in the notice, name of the Tehsil has been mentioned as Udaipurwati, therefore, in my considered view the service upon the petitioners-defendants was not proper; secondly, in the facts and circumstances of the present case, the trial court has committed illegality in dismissing the application submitted by the petitioners-defendants.

¶41

In that view of the matter, the writ petition filed by the petitioners-defendants is allowed and the order dated 12.10.2012 is set aside and the application filed by the petitioners-defendants under Order 9 Rule 7 CPC read with section 151 CPC dated 18.8.2012 is allowed as prayed therein.

¶42

Petitioners-defendants are permitted to participate in the suit proceedings. Considering the fact that the suit is pending since 2007, the trial court is directed to expedite the suit proceedings.

¶43

(INDERJEET SINGH),J

¶44

Brijesh 47.

Bhawani Dutt and Anr. v. Manoj Kumar and Ors.

Case brief

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Bhawani Dutt and Anr. v. Manoj Kumar and Ors.

Case brief

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