IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.757 of 2009 Suresh Chandra Srivastava Versus Chandra Shrivastava & Anr ---------------------------------- 5 21-12-2011 Heard learned counsels appearing on behalf of the parties. The petitioner is aggrieved by the impugned order passed under Order 9 Rule 13 C.P.C. setting aside the ex-parte decree passed in P.S.No. 364 of 1996 against the opposite parties. The impugned order has proceeded on the basis that the summons had not been served upon the defendants. The learned counsel appearing on behalf of the petitioner has vehemently submitted that even earlier to the passing of the ex-parte decree ,the defendant-opposite parties filed a petition in the suit itself for recalling the order for proceeding ex-parte in the suit invoking the provision of Order 9 Rule 7 C.P.C.On the same petition the court below declined to pass order on merits only on the ground that the suit had been posted for judgment. It has been further contended that even thereafter the defendant-opposite parties filed another petition for recall of the ex-parte proceeding when there was delay in the delivery of judgment and, therefore, on this basis it has been contended on behalf of the petitioner that the defendant-opposite parties had the knowledge of the ex-parte proceeding in the suit and as such in view of the proviso to Order 9 Rule 13 C.P.C. the power and jurisdiction under Order 9 Rule 13 C.P.C. should not have been exercised even when the summons had not been served or there 2 was irregularity in service of summons. The learned counsel also submitted that the whole game of defendant-opposite parties is to delay the disposal of the suit and linger the matter. The learned counsel appearing on behalf of defendant-opposite parties, however, contested the submission made on behalf of the petitioner and supported the impugned order. After hearing the parties, it appears that there is a finding of fact recorded by the court below in the impugned order that the summons had not been served upon the defendants. The submission on behalf of the petitioner that defendant-opposite parties had the knowledge of the ex-parte proceeding would have substance in case their petition under Order 9 Rule 7 CP.C. would have been disposed of on merits. On the other hand, the filing of the said petition and thereafter repeating the same prayer by filing another petition, discloses the anxiety on the part of the defendant- opposite parties to be heard in the suit. In view of the finding of fact regarding non-service of summons, which is within the jurisdiction of the court below to record, I do not find any illegality or jurisdictional error in the impugned order. This revision application is, accordingly, dismissed. However, as the suit is of the year 1996, the court below is directed to take up the hearing of the suit on priority basis and dispose it of preferably within six months from the date of receipt/production of this order. The learned counsels appearing on behalf of both the parties have assured this Court that they will 3 extend their full co-operation in the disposal of the suit within the above time-frame and will avoid unnecessary adjournments. roy ( V. Nath, J.)