Rajesh Kumar Sharma v. Ashok Kumar Mangla

1. This petition under Article 227 of the Constitution of India impugns the concurrent orders of the courts below; of the trial court dated 26.4.2010 and the first appellate court dated 28.1.2011; by which the courts below have dismissed the application filed by the petitioner/defendant under Order IX Rules 7 and 13 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for setting aside the ex parte order dated 3.9.2003 (whereby the petitioner/defendant was proceeded ex parte) and also the ex parte judgment and decree subsequently passed on 29.10.2005. 2014:DHC:4711

2. A reading of the impugned order shows that the basic reason for refusing to allow the application under Order IX Rules 7 and 13 filed by the petitioner/defendant was that the petitioner/defendant had taken about 2 ½ years, after passing of the ex parte order on 3.9.2003 in moving the subject application. 3(i) Learned counsel for the petitioner/defendant has drawn my attention to an order passed by a learned Single Judge of this Court in FAO No. 269/99 on 8.1.2002, and which reads as under:- “FAO 269/99 Heard. It appears that two suits have been filed earlier relating to injunction as well as partition, prior to filing this suit, though it was executed on 4th October, 1998 in favour of the appellant. It is stated that in partition suit, the appellant was not a party. He was supposed to join as party, being the legal representative of the transferee of Smt. Kamlesh Sharma in the partition suit. Since the question relates to the share of Smt. Kailash Sharma not a partition suit is pending prior to this suit, it would be appropriate that this matter if listed alongwith Suit No. 2432/98 to avoid any conflicting orders in the two matters on 6th March, 2002, subject to the orders of Hon’ble the Chief Justice.”

(ii) It is argued that this order dated 8.1.2002 was passed in an appeal filed by the present respondent, and the plaintiff in the suit, against an order passed in the suit dismissing the injunction application of the respondent/plaintiff ie the order dated 8.1.2002 is passed in an appeal filed by the respondent/plaintiff against an order passed in the suit dismissing the injunction application of the respondent/plaintiff.

(iii) It is argued that the order dated 8.1.2002 in FAO No. 269/99 makes it clear that the subject suit was to be listed alongwith another suit NO. 2432/98 which was pending in the original side of this Court, and which order dated 8.1.2002 is prior to the order proceeding the petitioner/defendant ex parte on 3.9.2003. What is essentially argued is that after the subject suit was to be listed alongwith the connected partition suit pending in the original side of this Court, the petitioner/defendant could not have been proceeded ex parte in the suit and nor could the ex parte decree be passed because any effective orders in the suit could only have been passed by this Court after the suit was to be listed alongwith suit no. 2432/98 pending in the original side of this Court. It may be noted that the subject suit was pending in the District Court whereas the suit no. 2432/98 was pending in this Court.

4. To complete narration, it may be stated that even the suit for partition being suit no. 2432/98 which was pending in this Court was subsequently transferred to the District Court and was dismissed in default, but thereafter that suit has been restored and it is therefore prayed that the impugned orders proceeding the petitioner/defendant ex parte be also set aside on the same terms as setting aside of the dismissal in default order in suit no. 2432/98 and wherein the petitioner/defendant is also a party.

5. Considering the peculiar facts of the present case wherein the ex parte order dated 3.9.2003 was passed after the order dated 8.1.2002 transferring the subject suit to the original side of this Court, and consequently once the suit itself had to be heard and disposed of in the original side of this Court, therefore, the District Court ceased to have jurisdiction to pass any effective orders in the suit including the order dated 3.9.2003 proceeding the petitioner/defendant ex parte and thereafter passing the ex parte judgment and decree on 29.10.2005.

6. It may be noted that issues in the partition suit as well as the present suit pertain to entitlement of a co-owner to transfer the suit property/shop without consent of the other co-owner in an un-partitioned property. Parties to the present suit are also parties to the partition suit which is pending. No doubt, there may be a delay of 2 ½ years in filing of the application, however, since the trial court had no jurisdiction itself to pass the order dated 3.9.2003 proceeding the petitioner/defendant ex parte, and thereafter passing the ex parte judgment and decree dated 29.10.2005, in view of the order dated 8.1.2002 in FAO No. 269/99, the impugned orders dated 26.4.2010 and 28.1.2011 are set aside and hence the ex parte order dated 3.9.2003 and judgment and decree against the petitioner/defendant dated 29.10.2005 are set aside. The proceedings will now continue in the suit from the stage at which the suit was as on 3.9.2003. Parties are left to bear their own costs.

SEPTEMBER 16, 2014 VALMIKI J. MEHTA, J. ib