MANOJ KUMAR GUPTA,J. - (1.) The instant petition invoking supervisory power of this Court under Article 227 of the Constitution has been filed for questioning the validity of order dated 1.10.2014 passed by the Ist Additional Civil Judge (Sr. Div.), Court No. 1, Agra, in Misc. Case No. 56/2003 and the order dated 18.9.2017 passed by the Additional District Judge/Special Judge, Agra in Civil Revision No. 74/2014.
(2.) Original Suit No. 298 of 1998 was filed by the plaintiff petitioner against the defendant respondents for permanent injunction. It was decreed ex-parte on 3.5.2003. The defendant respondents filed an application under Order 9, Rule 13 CPC on 4.8.2003 for setting aside the ex-parte decree. They specifically pleaded that they had not been served with summons nor were aware of the proceedings but they came to know of the ex-parte judgment when copy thereof was filed by the plaintiff petitioner in proceedings under Section 145 Cr. P.C., 1973 The date of knowledge according to the defendant respondents is 25.7.2003 and soon thereafter, they got the record of the instant suit inspected and filed application on 4.8.2003 under Order 9, Rule 13 CPC. The trial Court allowed the application by order dated 1.10.2014, after recording a specific finding that there is no order passed by the trial Court holding service of summons on the defendant to be sufficient. The trial Court has further held that an application purportedly filed on behalf of defendant No. 1 being paper No. 34 Ga through Sri Vijay Kumar Sharma, Advocate, could not be accepted to be an application filed by the defendants inasmuch as there is no vakalatnama of the said advocate on behalf of defendant No. 1 on record of the case. It is noticeable that the specific case of the defendant respondents was that they had never engaged Sri Vijay Kumar Sharma, Advocate, in the suit nor instructed him to seek adjournment and they came to know of filing of such application, purportedly on their behalf, after they inspected the record, having come to know of the ex parte decree. The revision filed by the plaintiff petitioner has been rejected by the trial Court.
(3.) Learned counsel for the petitioner submitted that the Proviso added by the Allahabad High Court to Order 9, Rule 13 CPC provides that no decree shall be set-side merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing. It is urged that since an application was filed on behalf of defendant No. 1 seeking adjournment, therefore, it has to be assumed that the defendants had full knowledge of the proceedings.;