Binod Kumar Roy, J. - (1.) The Petitioner prays to quash the order dated 2.2.85 passed by the Munsif-I, Oral in Misc. Case No. 2 of 1979 as also the appellate order dated 11.7.85 passed by the District Judge, Jalaun at Oral, dismissing his Misc. Civil Appeal No. 30 of 1985 preferred against the aforementioned order.
(2.) The relevant facts are in a narrow compass. It appears that Respondent No. 4 Tulsi Ram Sharma who is a teacher of the Gandhi Inter College. Oral filed original suit No. 75 of 1975 for grant of permanent injunction impleading the Petitioner as one of the Defendants for restraining the Defendants from Interfering with his functioning as a teacher. It appears that Respondent No. 4 also sought for grant of temporary injunction. The Petitioner along with Respondent No. 5 who was then the Principal of the College appeared and opposed the prayer of Respondent No. 4. The application filed for grant of ad interim injunction by Respondent No. 4 was rejected. Respondent No. 4 went up in Misc. Appeal. The Petitioner and Respondent No. 5 entered appearance in the Misc. Appeal also. On 26.8.1976, however, the suit was dismissed for default. Respondent No. 4 filed an application for its restoration which was registered as Misc. Case No. 45 of 1976. On 18.12.1976, the Petitioner and Respondent No. 5 filed an objection in Misc. Case No. 45 of 1976. Thereafter on 4.2.1977, Misc. Case No. 45 of 1976 was transferred by the District Judge, Jalaun at Oral to the Court of Munsif-II Oral. According to Respondent No. 4, the Petitioner was present in the transferee court, namely, Munsif-II, Oral on 28.5.1977. On 5.11.1977, the prayer for restoration of the suit was allowed ex parte by Munsif-II. The Petitioner and Respondent No. 5 did not appear even in the suit which was decreed ex parte on 30.11.1977. On 27.1.1979, in the appeal preferred by Respondent No. 4 against the order rejecting his prayer for grant of ad interim Injunction, on 21.8.78 an application was filed by Respondent No. 4 that since his suit has already been decided in his favour, this appeal is not being pressed. This order was passed in presence of the Petitioner. On 27.1.79, the Petitioner along with Respondent No. 5 filed an application for setting aside the ex parte order under Order IX, Rule 13 Code of Civil Procedure along with an application under Section 5 of the Limitation Act. His prayer was resisted by Respondent No. 4 stating, inter alia, that the Petitioner had although knowledge of the proceedings in the suit and accordingly, the prayer seeking condonation of delay as well as the application seeking setting aside of the ex parte decree both are liable to be rejected. The parties were heard. By the impugned order dated 2.2.1985, the Munsif-II, Oral rejected the prayer of the Petitioner after holding as follows: (i) This fact is undisputed that on behalf of the Petitioner Sri Kameshwar Dayal Srivastava, Advocate was doing pairvi in the case; (ii) from the documents filed by opposite party No. 1 (Respondent No. 4 herein) it is clear that the applicant No. 2. the principal had knowledge of the disposal and the decision in the suit on 21.8.78 or in any view of the matter by 20.12.1978; (iii) Under Article 143 of the Limitation Act, 1963, 30 days period has been prescribed for filing an application for setting aside an ex parte decree which has to be computed from the date of knowledge of the decree in such suits in which summons or notices have not been served on the Defendants in accordance with law. As in the instant case Defendants have already entered appearance, there is no question of extension of 30 days period, (iv) The Misc. Case No. 45 of 1976 was transferred on 4.2.1977, which was allowed on 5.11.1977, and during this long period both applicants had remained together and they had not made any attempt to know about the decision hence they cannot derive advantage of their inaction; (v) from the documents filed by opposite party No. 1 it is also clear that their lawyer Sri Kameshwar Dayal Srivastava also came to know of the decision of the suit on 21.8.78; (vi) Since the applicants have not furnished any sufficient cause, hence they are not entitled to any relief and the decision in Smt. Shanti Devi v. Rahmat Ulla AIR 1981 SC 81 does not offer any advantage to them. The appellate court concurred with the findings which in the peculiar facts and circumstances need not be reproduced.
(3.) The only submission made by Sri Arun Tandon, the learned Counsel appearing on behalf of the Petitioner, is that since the provisions of Rule 89A, which governs the procedure to be followed in regard to transfer or withdrawal of the cases are mandatory, the order allowing the Misc. Case and restoring back the suit was itself without Jurisdiction and accordingly, the application in question filed by the Petitioner was wrongly rejected.;