Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiffs and is directed against the order no.97 dated July 31, 2003 passed by the learned Civil Judge (Senior Division), Jalpaiguri in Misc. Case No.16 of 2001 arising out of the O.C. Suit No.97 of 1996.
(2.) THE short fact is that plaintiffs instituted a suit being O.C. Suit No.97 of 1996 for declaration, cancellation of a sale deed, injunction and other reliefs. In that suit, notices were issued upon the opposite parties but they did not contest the said suit. As a result, the suit was decreed ex parte on December 5, 2000. THEreafter, on October 5, 2001, the defendant nos.1 to 3 filed an application for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act, 1965 for condonation of delay and the said application for setting aside the ex parte decree was converted into a Misc. Case No.16 of 2001. That misc. case was dismissed for non-appearance of the defendants. THEreafter, the defendant nos.1 to 3 filed another application under Order 9 Rule 9 of the C.P.C. for restoration of the earlier Misc. Case No.16 of 2001 and the said misc. case was registered as Misc. Case No.21 of 2002. THE said misc. case was allowed restoring the Misc. Case No.16 of 2001, on March 5, 2003. Challenging that order, the plaintiffs preferred a civil revision being C.O. No.1319 of 2006. That revisional application was not entertained but the Hon"ble Court directed the learned Trial Judge to dispose of the Misc. Case No.16 of 2001 peremptorily within three months from the date of communication of the order. THErefore, on July 31, 2006 the learned Trial Judge allowed the said Misc. Case No.16 of 2001. Being aggrieved, the plaintiffs have preferred the present revisional application. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the learned Trial Judge has allowed the application for setting aside the ex parte decree holding that summons was not served upon the defendant nos.1 to 3 but this recording, I find, is not correct. From the materials on record, it transpires that the learned Trial Judge passed the order no.3 dated June 21, 1997 to the following effect:- "The plaintiff filed Hazira. The defendant nos.1 to 3 take no steps in spite of due service of summons. The service upon the defendant no.4 returned unserved and the plaintiff to take steps by 12.08.1997." From the above-mentioned order, it is clear that summons has been duly served upon the defendant nos.1 to 3 who prayed for setting aside the decree passed earlier. The learned Trial Judge has taken a liberal view that summons has not been served upon the defendant nos.1 to 3. But, it is not so. The defendant nos.1 to 3 had, therefore, knowledge of the institution of the suit. But, they did not take any steps in the said suit and as such, the suit was decreed ex parte. The defendant no.4 entered appearance in the suit on July 20, 1998. Thereafter, the defendant no.4 prayed for time to file a written statement again. But, ultimately, the defendant no.4 did not contest the said suit and the suit was fixed for ex parte hearing on December 5, 2000. Thereafter, the evidence was recorded on behalf of the plaintiff and the suit was decreed ex parte. The cause shown by the defendant nos.1 to 3 cannot be treated as sufficient for non-appearance on the date of hearing of the suit and in fact, the application for setting aside the ex parte decree was a belated one. So, cause for delay has not been sufficiently explained. 3. The learned Advocate for the plaintiffs/petitioners have referred to the decision of AIR 2003 SC 1905, AIR 1959 SC 31 and AIR 2001 Bombay 187. These decisions are not of much important with respect to the matter under challenge. Moreover, this case is based on pure fact. So, these decisions are not applicable in the instant case. The impugned order is not, therefore, sustainable. The order needs to be set aside. Accordingly, this application is allowed. The impugned order is hereby set aside. Considering the circumstances, there will be no order as to costs.
(3.) URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;