Mool Chand vs Prabhu Dayal And Ors
2022 Latest Caselaw 7607 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 9818/2015

Mool Chand Adopted Son Of Shri Bhomraj @ Bhoma Ram, aged
about 49 years, resident of Dhani Dhabawali, Tan Geedawala,
Tehsil Srimadhopur, District Sikar Raj.
                                                     ----defendant/Petitioner
                                   Versus
1.     Prabhu Dayal Son Of Shri Bhudar Mal Sharma (Deceased)
       1/1 Govind Ram, aged about 50 years s/o prabhu dayal
       1/2 Shyam Sunder aged about 50 years s/o gopi ram
       1/3 Pramod kumar, aged about 45 years, s/o gopi ram
       1/4 Smt. Reshmi wife of gopi ram
       1/5 Pooja d/o gopi ram
       All resident of dhani dhabawali, tan geedawala, tehsil sri-
       madhopur, district sikar (Raj.)
2.     Smt. Sarju Wife Of Prabhu Dayal, Dhani Dhabawali, Tan
       Geedawala, Tehsil Srimadhopur, District Sikar Raj.
3.     Om Prakash Son Of Prabhu Dayal
4.     Bajrang Lal Son Of Prabhu Dayal, Both By Caste Brahmin,
       Residents Of Tiwario Ka Mohalla, Sikar Bazar, Srimad-
       hopur, District Sikar Raj.
                                                   ----plaintiffs/Respondents

For Petitioner(s)         :    Mr. Jai kishan Yogi
For Respondent(s)         :    Mr. Tanmay Dhand

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

ORDER RESERVED ON :: 30/11/2022 ORDER PRONOUNCED ON :: 02/12/2022

This writ petition has been filed under Articles 226, 227, 14,

16 and 300A of Constitution of India and Order 9 Rule 13 of CPC,

against ex-parte judgment and decree dated 22.12.1987 in Civil

Suit no.96/83 and the order dated 10.01.2014 passed by learned

(2 of 4) [CW-9818/2015]

Civil Judge, Neem ka thana in Civil Application No.12/2011 and

the order dated 13.04.2015 passed by learned Additional District

Judge, Neem ka thana in 3/2014.

Learned counsel for the petitioner submits that respondent

No.1 had filed the civil suit regarding cancellation of adoption deed

dated 26.11.1982. The said suit was decreed on 22.12.1987 ex-

parte. Learned counsel for the petitioner submits that the

petitioner had filed the application under Order 9 Rule 13 CPC

before the trial court on 28.05.2011. Learned counsel for the

petitioner submits that in the civil suit, advocate of the petitioner

had pleaded no instruction on 11.12.1987. It was obligation on

the trial court to inform the petitioner regarding the civil suit but

trial court had not sent the notice to the petitioner. Learned

counsel for the petitioner submits that respondent No.1 had

attacked on the petitioner and he was under treatment. So, he

could not attend the trial court. He came to know regarding the

ex-parte against him on 12.05.2011 and he had filed the

application within limitation but trial court wrongly dismissed the

application filed by the petitioner. Learned counsel for the

petitioner submits that petitioner had filed the appeal of the said

order but appellate court vide order dated 13.04.2015 wrongly

dismissed the appeal filed by the petitioner. Learned counsel for

the petitioner submits that in the interest of justice, order of trial

court as well as appellate court be set aside on cost and one

chance be given to petitioner to participate in the suit.

Learned counsel for the petitioner has placed reliance upon

the judgments in the case of Mahesh Kumar Joshi Vs. Madan

Singh Negi reported in 2015(1) WLC (SC) Civil 453, National

Bank Limited Vs. Ghanshyam Das Agarwal & Ors. reported in

(3 of 4) [CW-9818/2015]

2015(1) WLC (SC) Civil 455, Executive Officer, Antiyur

Town Panchayat Vs. G. Arumugam (D) by LRs. reported in

2015(1) WLC (SC) Civil 443, Laxmidevamma & Ors Vs.

Ranganath & Ors reported in 2015(1) WLC (SC) Civil 444,

Sheetal Khandelwal Vs. Rajasthan Financial Corporation

and Ors reported in 2014 WLC (Raj.) UC 564, Tahil Ram

Issardas Sadarangani & Ors Vs. Ramchand Issardas

Sadarangani reported in 1993 Supp (3) SCC 256, Malkiat

Singh & Anr. Vs. Joginder Singh & Ors. reported in AIR 1998

SCC 258.

Learned counsel for the respondents has opposed the

arguments advanced by learned counsel for the petitioner and

submitted that petitioner had filed the application for setting aside

ex-parte decree after lapse of 25 years. He had not shown any

bona-fide cause for not filing the said application previously.

Learned counsel for the respondents submitted that petitioner had

knowledge of Court proceedings. So, trial court as well as

appellate court rightly dismissed the application filed by the

petitioner. So, the petition be dismissed.

Learned counsel for the respondents has placed reliance

upon the judgments in the case of P. K. Ramachandran Vs.

State of Kerala & Ors.;Civil Appeal No.6514/1997, Sri Lal

Sah & Ors Vs. Gulabchand Sah (Dead) By LRs & Ors.

reported in (1993) 1 SCC 557, Garment Craft Vs. Prakash

Chand Goel; Civil Appeal No.314/2022 (arising out of SLP

(C) No.13941/2021).

I have considered the arguments advanced by learned

counsel for the petitioner as well as learned counsel for the

respondents.

(4 of 4) [CW-9818/2015]

It is admitted position that ex-parte decree was passed

against the petitioner on 22.12.1987. Advocate of petitioner had

pleaded no instruction but petitioner was very much aware about

proceedings. Petitioner had filed the present application for setting

aside ex-parte decree after the lapse of 25 years that cannot be

said bona fide. In my considered opinion, trial court as well as

appellate court had not committed any error in dismissing the

application filed by the petitioner. So, present petition is, being

devoid of merits and liable to be dismissed.

Therefore, the writ petition stands dismissed.

The pending application, if any, also stands disposed of.

(NARENDRA SINGH DHADDHA),J

Seema/67

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