Janardan Sahai, J. - (1.) A suit under section 176, U.P.Z.A. and L.R. Act was filed by the plaintiffs/respondents In that suit the petitioners were the defendants. A preliminary decree was prepared on 13.2.1979. Thereafter a final decree was also prepared on 15.12.1983. An application under Order 9, Rule 13, C.P.C. was filed by the petitioners, the defendants, in the suit for setting aside the preliminary decree dated 13.2.1979 and the final decree dated 15.12.1983. The application was supported by an affidavit of the petitioner Ram Dular son of Bipat. It is alleged in paragraph 6 of the affidavit that when the plaintiff started claiming possession on the basis of the decree for partition, the records were inspected and the petitioners came to know about the decree.
(2.) The Trial Court by its order dated 30.1.1997 rejected the application on the ground that the delay had not been sufficiently explained. The order of the Trial Court is a cryptic one and except for the aforesaid recital that the delay was not explained no reasons have been given by the Trial Court. The appeal filed by the petitioners was dismissed by the order dated 7.12.1998 of the Additional Commissioner, Varanasi. The Additional Commissioner, Varanasi has referred in the contention of the respondents counsel that in the application for setting aside the ex prate decree the petitioners have not made any averments that no notice was served upon the counsel and that in paragraph 4 of the application for setting aside the ex-parte decree it was stated that on account of illness the petitioners could not appear.
(3.) The copy of the application for setting aside the ex-parte decree and the affidavit are annexed as Annexures-5 and 6 to the writ petition. Learned counsel for the respondents could not point out any paragraph in the application wherein such averment as is referred to was made. The other reason given by the Additional Commissioner are that Bipat father of the petitioner Ram Dular had filed a written statement on 26.7.1976. This fact by which knowledge is being attributed to the petitioners does prove that Ram Dular had knowledge but it relates to the stage before the preliminary decree. There is no material referred to in the order of the Additional Commissioner other than the reference to the vague contention of the counsel for the respondents that may impute knowledge in respect of proceedings for preparation of final decree. The Board of Revenue also in its order dated 23.12.1998 while dismissing the second appeal has not referred to any fact, which may show that the petitioners had knowledge about the proceedings for the preparation of the final decree. The copy of the order sheet of the case has been filed by the petitioners as Annexure-1 to the writ petition. The order-sheet dated 8.8.1983 shows that despite service on the counsel for the defendants they did not appear and thereafter 2.9.1983 was the date fixed for confirmation of 'phats'. The order-sheet dated 6.6.1983 shows that it was ordered that notice be served on the defendants. The order dated 29.6.1983 discloses that the plaintiffs did not do pairvi and the Court fixed 7.7.1983 for notice to the defendant and the plaintiff was directed to take steps. There is nothing in the order-sheet to show that notice was indeed sent to the defendant. The order-sheet only refers to the notice sent to the counsel for the defendants. While then.' are sufficient grounds stated in the order of the Courts below to prove that the petitioners had knowledge about the proceedings for preparation of the preliminary decree, the Courts below have not adverted to the 'relevant facts, which would show that the petitioners had any knowledge of the proceedings for preparation of final decree. No doubt under Order 3, Rule 5, C.P.C. service on counsel is sufficient but learned counsel for the petitioners relied upon the decision of the Apex Court in Malkiat Singh ami others v. Joginder Singh and others, 1998 (Suppl.) RD 463 (SC) and on the strength of that decision it was submitted that information to the counsel was not sufficient information. The facts of the case cited are different. In that case the counsel to whom notice has been served had pleaded no instructions and the case had proceeded ex prate. In the present case it is not shown that the counsel pleaded no instructions. In para 44 of the petition it is stated that notice of counsel was issued on 8.8.1983 itself and served on counsel at 12.30 P.M. and it was not possible for the counsel to inform the client on the same date. No finding has been recorded in the order rejecting the application under Order 9, Rule 13, C.P.C. either by the Trial Court or by the Appellate Court or by the Board on the point of service on the counsel and the date when it was served and its effect. There is no finding which may show that the petitioners had any knowledge of the proceedings for preparation of final decree. The order of the Trial Court dismissing the application under Order 9, Rule 13, C.P.C. as well as the order of the Additional Commissioner and of the Board of Revenue are set aside in part. While no ground has been made out for setting aside the order rejecting the application for setting aside the preliminary decree, the question as to whether the petitioners were sufficiently served and had knowledge about the proceedings of the final decree has to be reconsidered. The case is remanded to the Trial Court for fresh decision of the application under Order 9, Rule 13, C.P.C. and section 5, Limitation Act only as regards the prayer for setting aside the final decree and the order dated 2.9.1983.;