Madhya Pradesh High Court
Jagdish vs M.P. Wakf Board Thr. on 22 April, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-GWL:8774
1 CR-54-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 22nd OF APRIL, 2025
CIVIL REVISION No. 54 of 2015
JAGDISH
Versus
M.P. WAKF BOARD THR.
Appearance:
Shri Vikas Singhal - Advocate for the petitioner.
Shri Faisal Ali Shah - Advocate for the respondent.
ORDER
This civil revision has been preferred by the petitioner/defendant
challenging the order dated 28/4/2015 passed by Second Additional District
Judge, Gwalior in M.C.A. No.3/2011 affirming the order dated 25/10/2010
passed by Third Civil Judge Class-I, Gwalior in M.J.C. No.6/2009, whereby
Courts below have concurrently dismissed petitioner's application under
Order IX Rule 13 of C.P.C. for setting aside ex parte judgment and decree
dated 19/4/1969.
2 . Learned counsel for the petitioner submits that without effecting
service of summons in the original civil suit, an ex parte decree was passed
on 19/4/1969 and after coming to know about ex parte judgment and decree,
the petitioner filed an application under Order IX Rule 13 of C.P.C. on
7/10/1974 and in support of his case, he examined Babulal (PW-1),
Rameshchand (PW-2) and petitioner himself -Jagdish (PW-3), but despite
availability of opportunity, no evidence in rebuttal was adduced by the
NEUTRAL CITATION NO. 2025:MPHC-GWL:8774
2 CR-54-2015
respondent/plaintiff, and without taking into consideration this aspect of the
matter and only on the ground of delay in filing the application under Order
IX Rule 13 of C.P.C., Trial Court dismissed the application vide impugned
order dated 25/10/2010, which upon filing of Miscellaneous Civil Appeal has
been affirmed by Appellate Court vide order dated 28/4/2015. He submits
that in absence of any evidence in rebuttal to the evidence adduced by the
petitioner in support of the application under Order IX Rule 13 of C.P.C., the
application ought to have been allowed.
3. Learned counsel for the respondent/plaintiff supports the impugned
order passed by Courts below and prays for dismissal of civil revision with
the further submissions that the service was effected properly on the LRs. of
original defendant and thereafter, service was effected on the petitioner-
Jagdish by way of affixture upon his refusal to accept the service. Therefore,
Courts below have rightly dismissed the application under Order IX Rule 13
of C.P.C. and the impugned orders are not liable to be interfered with in the
limited scope of civil revision provided under Section 115 of C.P.C.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, service is said to have been effected on the
petitioner/defendant by way of affixture. By adducing evidence in support of
his submissions made in the application under Order IX Rule 13 of C.P.C.,
the petitioner examined the aforementioned witnesses including himself-
Jagdish (PW-3). Record shows that sufficient opportunities were given to the
respondent/plaintiff to adduce evidence in rebuttal to the evidence adduced
by the petitioner/defendant, but for the reasons best known to it, no evidence
NEUTRAL CITATION NO. 2025:MPHC-GWL:8774
3 CR-54-2015
was adduced on behalf of the respondent/plaintiff in rebuttal to the evidence
adduced by the petitioner/defendant. Although Courts below have
appreciated the evidence of the petitioner/defendant, but while passing the
impugned orders, Courts below have not taken into consideration the effect
of non-adducing the evidence by the respondent/plaintiff in rebuttal to the
evidence adduced by the petitioner/defendant.
6. In my considered opinion, when the petitioner by adducing evidence
has specifically stated that service was not effected on him, then it was duty
of the respondent/plaintiff to adduce evidence in support of its submissions
to the effect that service was effected on the petitioner and in absence thereof,
there is no option available with this Court, but to allow the application under
Order IX Rule 13 of C.P.C. filed by the petitioner/defendant.
7. As a result thereof, civil revision stands allowed and by setting aside
the impugned orders, the ex parte judgment and decree dated 19/6/1969 is set
aside with the further direction to Trial Court to restore the civil suit to its
original number and then to decide the same after taking into consideration
the provisions of Section 85 of the Waqf Act, 1995.
8. With the aforesaid, this civil revision is allowed and disposed of .
9 . Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
AK/-
