Patna High Court
Indra Mohan Prasad And Ors vs Sri Shailendra Kumar And Ors on 21 January, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1400 of 2017
======================================================
1. Indra Mohan Prasad S/o late Govind Prasad Sah
2. Krishna Mohan Prasad S/o late Govind Prasad Sah
3. Gautam Prasad Gupta S/o chandra Mohan Prasad
4. Gaurav Kumar Gupta Son of Chandra Mohan Prasad All Resident of
Village- Jhing Nagar, P.S. Bihar, Distt- Nalanda.
... ... Petitioner/s
Versus
1. Sri Shailendra Kumar S/o Krishnandan Prasad resident of Village-
Dosut,P.S. Wena, Distt- Nalanda.
2. Smt. Sarita Sinha W/o Sri Biresh Kumar Pintu Resident of Village- Ajaypur,
P.S.- Noor Sarai, Distt- Nalanda.
3. Kumar Ashawani Sinha W/o Sri Rajeev Kumr Ranjan Resident of Village-
Gaibi, P.S.- Rahui, District Nalanda.
4. Sri Jamun Mahto S/o late Lakhan Mahto Resident of Village- Mohanpur,
P.S. Nalanda , Distt- Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anil Kumar No.1, Advocate
Ms. Sonam Kumari, Advocate
For the Respondent/s : Mr. Pramod Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 21-01-2025
Heard learned counsel for the petitioners as well as
learned counsel for the respondents.
2. The petitioners are aggrieved by the order dated
14.06.2017
passed by the learned Sub Judge-III, Nalanda at
Bihar Sharif in Title Suit No. 217 of 2012 whereby and
whereunder the application filed by respondent no.4 under
Order IX Rule 7 of the Code of Civil Procedure (for short ‘the
Code’) has been allowed setting aside the ex-parte proceeding
Patna High Court C.Misc. No.1400 of 2017 dt.21-01-2025
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against respondent no.4 at the cost of Rs. 2,000/- and thereafter
respondent no.4 was permitted to file the written statement.
3. Learned counsel for the petitioners submits that the
petitioners as plaintiffs have filed title suit for declaration of
their title over suit land and also for declaring the sale deeds
executed by defendant no.4 in favour of defendant nos. 1, 2 and
3, who are respondent nos. 1, 2 and 3, respectively herein, to be
forged and void ab initio. Learned counsel further submits that
summons were issued on the defendants/respondents but they
did not appear till the matter was fixed for judgment after
completion of hearing. The defendants were properly served.
However, defendant no.4 filed an application under Order IX
Rule 7 of the Code and the learned trial court without
considering the fact that the defendant no.4 was properly served
and the matter was fixed for judgment on 08.09.2016 ordered
for setting aside the ex parte proceeding and allowed the
defendant no.4 to file his written statement. Learned counsel
further submits that as the defendant no.4 was duly served, the
averment made on his behalf that he heard about the proceeding
before the learned trial court is not correct. Learned counsel
further submits that moreover, when the matter has been fixed
for judgment, the proceeding cannot be set aside under Order IX
Patna High Court C.Misc. No.1400 of 2017 dt.21-01-2025
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Rule 7 of the Code. Thus, learned counsel submits that the
impugned order is not sustainable and the same be set aside.
4. Learned counsel appearing on behalf of respondent
no.4 submits that there is no infirmity in the impugned order and
the same does not need any interference. Learned counsel
further submits that respondent no.4 is defendant no.4 before the
learned trial court and he never received any summons or notice
of the proceedings of the Title Suit No. 217 of 2012. The
summons were never served upon defendant no.4/respondent
no.4. Learned counsel further submits that substituted served by
way of publication was done in newspaper ‘Aaj’ which has a
negligible circulation in the area of respondent no.4. Moreover,
the respondent no.4 being an agriculturist has no interest in
reading the newspapers and for this reason, he could not come
to know about the notice and could not appear earlier in the
case. Learned counsel further submits that though other
defendants, after publication, appeared but did not file their
written statements and the order for ex parte hearing was passed
against all the defendants. Learned counsel reiterates that the
answering defendant has no knowledge about the proceeding
and for this reason, he could not appear in the case and contest
the suit. Learned counsel further submits that the application
Patna High Court C.Misc. No.1400 of 2017 dt.21-01-2025
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was filed for setting aside the ex parte proceeding while the
matter has been fixed for argument on the legal points at the
instance of the plaintiffs/petitioners and the submission of the
learned counsel for the petitioners that the matte was fixed for
judgment is not entirely correct. Moreover, every party should
have get an opportunity to contest the suit and the learned trial
court has rightly observed that before passing any order in a
civil suit, both sides must be heard. Therefore, there is no
infirmity in the impugned order and the same needs to be
sustained.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. The
contention of the learned counsel for the petitioners that the
matter was fixed for judgment and at this stage the ex parte
proceeding was ordered to be set aside, would have been a valid
point to challenge the impugned order if the matter was not
taken back from the stage of judgment to the stage of argument
at the instance of the plaintiffs. So the submission that the order
could not have been passed under Order IX Rule 7 of the Code
is not tenable. So far as service of summons and respondent
no.4 having knowledge are concerned, the learned trial court has
considered the fact and allowed the application in broader
Patna High Court C.Misc. No.1400 of 2017 dt.21-01-2025
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interest of justice subject to payment of cost of Rs. 2,000/-. I am
of the view that the discretion of the learned trial court in this
matter does not need any interference by this Court except to the
extent that higher cost needs to be imposed instead of merely
Rs. 2,000/- which was allowed by the learned trial court while
allowing the application filed for setting aside the ex parte
proceeding. To that extent the order needs modification.
Therefore, the order dated 14.06.2017 is modified and the
application 19.12.2016 of the respondent no.4 is allowed subject
to the payment of cost of Rs. 10,000/- to be paid to the
plaintiffs/petitioners on the first date of hearing before the
learned trial court and thereafter the written statement would be
taken on record.
6. With the aforesaid modification in the impugned
order, the present petition stands disposed of.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 23.01.2025 Transmission Date NA
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