- (1.) VINEET Saran, J. Original suit No. 729 of 1995 was filed on 12-10-1995 by Respondent No. 3 Jamin Raja Khan against the petitioners for a decree of permanent injunction and cancellation of sale-deed dated 29-12-1994 passed in favour of the petitioners. An ex parte decree dated 1-5-1997 was passed by the trial Court decreeing the suit of the plaintiff. Then on 24-1-1998, the petitioners (defendants) filed an application under Order IX, Rule 13, CPC for setting aside the ex parte decree alongwith application under Section 5 of the Indian Limitation Act. The application for condonation of delay, as well as the application for setting aside the ex parte decree, were both rejected by the Civil Judge vide his order dated 8-3-2001. Misc. Appeal No. 25 of 2001 filed by the petitioners against the said order has also been dismissed by the Additional District Judge vide his order dated 16-5-2002. Aggrieved by the aforesaid orders, this writ petition has thus been filed with the prayer for quashing the orders dated 16-5- 2002 and 8-3-2001 passed by Respondent Nos. 1 and 2 respectively, as well as the ex parte Judgment and Decree dated 1-5-1997 passed by the Respondent No. 2.
(2.) I have heard Sri Chandra Kumar Rai on behalf of the petitioners and Sri M. A. Siddiqui on behalf of the contesting respondent No. 3 and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being disposed of at the admission stage itself. In the application filed under Order IX, Rule 13 CPC, the petitioners have categorically stated that they had no knowledge of the ex parte decree till 20-1-1998 when the Respondent No. 3 had, for the first time, come to disturb the possession of the petitioners over the property in dispute. Immediately thereafter on 22-1-1998, the petitioners contend, they got the file inspected and on 24-1-1998 filed the application for setting aside the ex parte decree on 24-1-1998. The case of the petitioners is that after the execution of the sale-deed dated 29-12-1994, they had come in possession of the property in dispute and that the plaintiff-respondent No. 3 is basing his claim solely on the basis of some agreement executed in his favour in the year 1975, which was nearly 20 years prior to the execution of the sale- deed in favour of the petitioners. The Civil Judge rejected the applications primarily on the ground that service of notice was deemed to be found sufficient. Although the notices were never actually served on the petitioners, but since allegedly the petitioners refused to accept the notices, the same were deemed to have been served on the petitioners. It was also mentioned by the trial Court that in a written statement filed in some other suit, in which the husband of one of the petitioners was a party, a mentioned of the suit for cancellation of the sale-deed had been made and thus also it would be deemed that the petitioners had knowledge of the pendency of the suit. As such, the trial Court refused to condone the delay in filing the application under Order IX Rule 13 CPC and thus rejected both the applications. The appeal filed by the petitioners against the order of the trial Court has also been dismissed on similarly grounds. From a perusal of the record it is clear that notices were actually never served on the petitioners. The notices were only sent by ordinarily process and not even by registered process. It was thereafter that notices were sent through Advocate Commissioner who reported that in presence of two witnesses the petitioners refused to accept the same. It is the clear case of the petitioners that the two witnesses who had been shown in the report of the Advocate Commissioner were inimical towards the petitioners as there was litigation going on with them and as such no reliance could have been placed on the report of the Advocate Commissioner. It is also improbable that even on coming to know of a suit for cancellation of their sale-deed, the petitioners would not contest the suit, especially when the possession of the property in dispute had been handed over to the petitioners on which, as claimed by the petitioners, they have already made constructions. The endeavour of the Courts of law should be to decide the case on merits after giving sufficient opportunity to the parties and hearing them. In the present case, although technically it had been recorded that the service of notices on the petitioners was deemed sufficient but actually, from the facts, it does not appear that the petitioners had ever been served with the notices in the suit. Merely because in some other case filed against the husband of one of the petitioners, some mention of the pendency of the present suit was made in a written statement, the same would not amount to be sufficient service of notices on the petitioners. The trial Court as well as the appellate Court have taken a very technical view of the matter. In my opinion, in the circumstances of the case, without the trial Court having sent notices by registered post or if still not served, directing publication of notices in the newspaper, the order of deeming sufficiency of services was not appropriate. The endeavour of the Courts should be to give the parties sufficient opportunity of contest the case on merits, rather than to decide the same ex parte. In such cases, the Courts of law are to take a more liberal view while dealing with such issues and make every effort to decide the lis between the parties on merits, as passing of an ex parte decree, may at times, as in the present case, amount to causing grave injustice to a party. In the case of Bhagwan Pandey v. III Additional District Judge Ballia, 2002 (1) JCLR 62 (All) : 2001 (92) Revenue Decisions 809, (which is based on similar facts as in the present case) where the application under Order IX Rule 13 CPC was rejected by the trial Court and the appeal against the said order was also dismissed, this Court had set aside the said two orders, as also the ex parte decree and directed the trial Court to proceed with the suit on merits.
(3.) AS regards the application for condonation of delay in filing the application for setting aside the ex parte decree, it may be observed that in case of ex parte decree, the limitation would begin from the date of knowledge of the passing of the ex parte decree, which in the present is 20-1-1998 and the application was filed within four days of the same. The Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji, AIR 1987 SC 1353, has held that "the Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by deposing of matters on 'merits'. " While laying down the guidelines for deciding such application, it was held that the Courts should adopt a liberal approach in the matter while dealing with application for condonation of delay. The cases of Mst. Bhabia Devi v. Permanand Pd. Yadav, 1997 (1) JCLR 946 (SC) : AIR 1997 SC 1919 and Sidheshar Sahu v. Arakhita Jena, AIR 1996 Orissa 29, as have been relied upon by the learned Counsel for the Respondent No. 3 are distinguishable on facts and would have no application in the present case.;