Janardan Sahai, J. - (1.) A suit under section 229-B of U.P. Zamindari Abolition and Land Reforms Act was filed by the respondents 5 to 9 against the petitioner. It appears that 2.5.200 was fixed by the Trial Court on which date arguments of the parties were heard and the Trial Court passed an order fixing 8.5.2000 for delivery of judgment. The petitioner's case is that after 2.5.2000 the respondents 5 to 9 filed some application before the Trial Judge, copy of which was not served upon the petitioner/defendant and on that application the Trial Court fixed 11.5.2000 of which no notice was given to the petitioner and it had no knowledge of the said date. It appears that on 11.5.2000 two documents were filed by the respondents 5 to 9 and the said documents were taken on record and the Trial Court thereafter delivered the judgment on 16.5.2000. In the judgment the Trial Court relied upon the two documents filed on 11.5.2000 by the respondents 5 to 9. The petitioner filed an application under Order IX, Rule 13 Civil Procedure Code for setting aside the decree dated 16.5.2000 of the Trial Court. The Trial Court allowed the application after hearing the parties and set aside the ex parte decree. The finding recorded by the Trial Court is that 11.5.2000 was not a date fixed for evidence but the two documents filed by respondents 5 to 9 were taken on record on that date without giving any opportunity to file evidence in rebuttal to the petitioner. Against the order of the Trial Court allowing the application the respondents 5 to 9 filed a revision in the Board of Revenue. The Board of Revenue has by its order impugned allowed the revision and has set aside the order for restoration and has maintained the ex parte decree.
(2.) I have herd Sri Prem Chandra, learned Counsel for the Nagar Nigam, Ghaziabad, Sri Ramendra Asthana and Sri S.K. Tyagi, learned Counsel for the respondents 5 to 9 and Sri A.K. Mishra, learned Counsel for the Ghaziabad Development Authority a respondent in the writ petition.
(3.) The Board of Revenue has taken the view that the application under Order IX Rule 13 Civil Procedure Code filed by the petitioner was not maintainable, as the suit had been decreed on merits. The Board also found that opportunity was given to the petitioner and he was heard. However, Sri Prem Chandra has attacked this finding of the Board of Revenue. The copy of the objection filed by the respondents 5 to 9 is on the record. There is no denial of the averments made by the petitioner in its application for setting aside the ex parte decree, that it was not given any notice about the date 11.5.2000 nor any opportunity of adducing evidence in rebuttal and that it was also not heard on 11.5.2000. The Trial Court has also recorded a finding that the petitioner was not given any opportunity of adducing evidence in rebuttal and that the petitioner had no knowledge about the date 11.5.2000. The Board of Revenue has no doubt held that the petitioner was heard but this observation of the Board of Revenue is not borne out from the facts, which stare out of the record. The averments about not being given copy of the application on which the date 11.5.2000 was fixed, want of notice of the date 11.5.2000, about not being given opportunity to file papers in rebuttal about not being heard made in the application were not denied. The Board has not given specific finding that the petitioner was heard on 11.5.2000. blearing given to the petitioner referred to by the Board can be with reference to the date 2.5.2000 when the petitioner was heard but that hearing would not be sufficient hearing when additional papers were filed and another date 11.5.2000 was fixed. The petitioner was not heard on 11.5.2000. The order of the Trial Court no doubt is on merits but the decree has been passed without opportunity of-hearing to the petitioner on 11.5.2000. The decree is, therefore, an ex parte decree. In such a case an application under Order IX, Rule 13 Civil Procedure Code is maintainable and the view taken by the Board of Revenue is erroneous. Learned Counsel for the respondents relied upon the decision of the Apex Court in Balraj Taneja and another v. Sunil Madan and another, 1999 (90) RD 600. That was a case where no written statement was field and the suit was decreed and the question arose about the scope of Order VIII Rule 10 Civil Procedure Code. The fact situation in that case was wholly different from the one that exists in the present case. The said decision has no application to the facts of the present case in which Order VIII, Rule 10 Civil Procedure Code is not attracted. Although in the fact situation of the present case I have taken the view that the application under Order IX, Rule 13 Civil Procedure Code is maintainable but even assuming that the said provisions do not apply the application is in any case maintainable under section 151 C.P.C. Sri Prem Chandra, learned Counsel for the petitioner relied upon the decision in Indian Bank v. M/s. Satyam Fibers (India) Pvt. Ltd., JT 1996 (7) SC 135, in which it has been held that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party the Court has inherent power to recall its order. In the result the writ petition is allowed. The order of the Board of Revenue, U.P., Allahabad dated 16.8.2001 is set aside and the order of the Trial Court restoring the suit is maintained. Petition Allowed.;