Madhya Pradesh High Court
Babulal vs Mohanlal S/O Fakirchand ... on 28 June, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 28 th OF JUNE, 2023
CIVIL REVISION No. 85 of 2017
BETWEEN:-
BABULAL S/O FAKIRCHAND CHOUDHARY, AGED
ABOUT 67 YEARS, OCCUPATION: PATRAKAR EVAM
DALALJI, R/O 20 JATO KA WAS RATLAM (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI V.A.KATKANI - ADVOCATE)
AND
1. MOHANLAL S/O FAKIRCHAND CHOUDHARY
DECEASED THROUGH LRS. SMT. RADHADEVI
W/O MOHANLAL CHOUDHARY, AGED ABOUT 58
YEAR S, OCCUPATION: HOUSEHOLD WORK 148
ALKAPURI RATLAM (MADHYA PRADESH)
2. MOHANLAL S/O FAKIRCHAND CHOUDHARY
DECEASED THROUGH LRS. SHAILENDRA S/O
MOHANLAL CHOUDHARY, AGED ABOUT 40
Y E A R S , OCCUPATION: AUTO GARAGE 148,
ALKAPURI RATLAM (MADHYA PRADESH)
3. MOHANLAL S/O FAKIRCHAND CHOUDHARY
DECEASED THROUGH LRS. PRAKASH S/O
MOHANLAL CHOUDHARY, AGED ABOUT 34
Y E A R S , OCCUPATION: AUTOGARAGE 148,
ALKAPURI RATLAM (MADHYA PRADESH)
4. MOHANLAL S/O FAKIRCHAND CHOUDHARY
DECEASED THROUGH LRS. SMT. LALITA W/O
ANAND CHOUDHARY, AGED ABOUT 57 YEARS,
OCCUPATION: HOUSEHOLD WORK JUNA SHAHAR
BADNAGAR DISTRICT UJJAIN (MADHYA
PRADESH)
5. SMT. RADHADEVI W/O KANHAIYALAL
CHOUDHARY, AGED ABOUT 57 YEARS,
OCCUPATION: HOUSEHOLD GRAM KHAVASA
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 30-Jun-23 5:36:03
PM
2
TEHSIL PETLAVAD DISTRICT JHABUA (MADHYA
PRADESH)
6. SMT. SHAKUNTALA W/O NANDRAMPATEL JAT,
AGED ABOUT 55 YEARS, OCCUPATION:
HOUSEHOLD GRAM SANDLA TEHSIL BADNAWAR
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BRIJESH GARG - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
The present petition is filed being aggrieved by the order dated 21.4.2017
passed by II ADJ, Ratlam in M.A.No. 57/2016 arising out of order dated
28.1.2016 passed by I Civil Judge class-I Ratlam in MCC No.5A/2013.
2. Facts of the case are that applicant filed a civil suit for title and
permanent injunction. An ex-parte decree was passed on 15.4.1985. The
defendants filed an application under order IX Rule 13 CPC along with
application for condonation of delay on 26.8.2013 contending that no notice
was duly served to them and they came to know about the ex-pare decree only
on 29.07.2013 when the applicant/plaintiff Babulal tried to dispossess them
from the house. The trial court dismissed the said application under Order IX
Rule 13 CPC and also the application under section 5 of the Limitation Act by
order dated 28.1.2016. Being aggrieved by the said order the respondent No.1-
Geetabail filed an appeal under Order 43 Rule 1 CPC which has been allowed
by the impugned order dated 21.4.2017. The ex-parte decree has been set aside
and the suit has been directed to be restored to its old number and trial court
was directed to make an endeavour to conclude the trial within 6 months as it
was pending since 1984. The said order is challenged in the present revision
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 30-Jun-23 5:36:03
PM
petition mainly on the ground that appellate court has erred while allowing the
application after 38 years without there being proper explanation of delay. In
support of his submission, he has placed reliance on the judgment passed by
Supreme Court in the case of Shanti Devi and others Vs. Kaushalya Devi,
(2016) 16 SCC 565 wherein it is held that delay of more than 11 years in filing
substitution application should not have been condoned on insufficient grounds
and by abusing process of law. He also placed reliance on an order passed by
co-ordinate bench in the case of Radhacharan Sharma Vs. State of M.P.
(Writ Petition No. 6199/2012) whereby the Court has set aside the order of
condonation of delay of 23 years without there being any sufficient cause.
3. Counsel for the respondents supported the impugned order and
submitted that the notice sent by the court was never received by the
respondents and an ex-parte decree was wrongly passed. He submitted that
plaintiff is real son of defendant Smt. Geetabai and in the plaint he has
mentioned the same address of the plaintiff and the defendants whereas in para-
2 of the plaint he stated that the plaintiff and defendants are residing separately.
It is further submitted that the defendants came to know about the ex-parte
decree only on 29.7.2013 when the plaintiff tried to dispossess the defendant
Geetabai on the basis of ex-parte decree. Thereafter immediately application for
setting aside the ex-parte decree was filed on 26.8.2013 and by way of abundant
caution an application for condonation of delay was also filed, however the trial
court dismissed the said application mainly on the ground that filing of the
application under section 5 of the Indian Limitation Act itself proceeds with the
presumption that the defendants had knowledge of the ex-parte decree and were
seeking condonation of delay. He has drawn attention of this Court to para 12
of the order of trial court. He filed copy of the ordershseets to show that the
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 30-Jun-23 5:36:03
PM
trial court has already concluded the evidence and case is fixed for final
arguments but final judgment could not be passed because of the interim order
passed by this Court. This Court while issuing notice on 21.6.2017 passed an
interim order directing the trial court not to decide the civil suit. He argued that
defendants had no knowledge of ex-parte decree, therefore the trial court has
erred while rejecting the application for setting aside the ex-parte decree and the
appellate court has rightly allowed the application because there was no service
of summons to the defendants. In support of his submission, he has placed
reliance on a judgment passed by co-ordinate bench in the case of Sohanlal
Vs. Manju, 2010 (3) MPLJ 586 and also the judgment in the case of Mohd.
Yakub Niyaji Vs. Shahi Zama Masjid Gwalior, 2016 (3) MPLJ 444 and
the judgment in the case of Krishna Gopal and others Vs. Pushpa Devi and
others, 2010 (IV) MPJR 25.
4. I have heard learned counsel for the parties and perused the record.
5. The trial court has recorded a finding in paragraph 12 that there is no
record available to show that the summons were duly served on the defendants.
The defendants have made a specific pleading that notice was not served on
them. Apart from that from perusal of the plaint, it is manifest that plaintiff has
mentioned the same address in the plaint but in para-2 of the plaint, he has
stated that defendants are residing at different places. This shows that
intentionally wrong address of the defendants was mentioned in the plaint. The
appellate court has recorded a specific finding that record relating to service of
notice on the defendants has already been eliminated and there is no document
to prove that the notice was served on the defendants and therefore, in absence
of any contrary evidence to the averments of the defendants that the notice was
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 30-Jun-23 5:36:03
PM
not served to them and they came to know about the ex-parte only on
29.07.2013 and not before that, cannot be disbelieved. The mere filing of the
application under section 5 of the Indian Limitation Act could not have been a
ground for drawing a presumption that the defendants had knowledge of the ex-
parte decree in absence of specific material to that effect.
6. In the case of Sohanlal (supra), this Court has held that the order of
ex-parte decree can be set aside if the court is satisfied that the summons were
not duly served and secondly that the defendants was prevented by sufficient
cause from appearing before the Court. The same has been reiterated in the
judgments relied on the counsel for the respondent. Apart from that, defendant-
Geetabai was an illerate lady and the same is also a relevant consideration for
setting aside the ex-parte decree as it has been held in the case of Mohd. Yakub
Niyaji (supra) that while proceeding ex-parte, overall background of litigant and
other related circumstances ought to have been considered by the trial court. In
the present case, the trial court has failed to take into consideration the aforesaid
background of the litigant. The appellate court has rightly set aside the ex-parte
decree. The judgments relied on by counsel for applicant would not apply to
the facts of the present case in view of above discussion.
7. In view of aforesaid, I do not find any illegality in the impugned order
and no interference is warranted in revisional jurisdiction. Criminal Revision is
accordingly dismissed. Since the suit is pending since 1984 and therefore, it is
also observed that the trial court shall conclude the trial expeditiously and
parties will not seek unnecessary adjournment in the matter.
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 30-Jun-23 5:36:03
PM
(VIJAY KUMAR SHUKLA)
JUDGE
MK
Signature Not Verified
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 30-Jun-23 5:36:03
PM
