IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1536 of 2006 JANKI DEVI Versus VIJAY KUMAR SINGH & ANR ----------- 2 8.12.2008 Heard counsel for the parties. The impugned order passed by the lower appellate court seeking to reverse the order passed by the trial court as with regard to an application under Order IX Rule 13, does not suffer from any jurisdictional error. The lower appellate court has scrutinised the entire evidence brought on record by the parties and has recorded the findings that there was no proof in the records to show that the summons were ever served on the defendants during the pendency of the suit or even after preparation of the preliminary decree. In the opinion of the lower appellate court the defendants in the circumstances were held to have no knowledge of the suit and passing of the ex-parte judgment and decree. Counsel for the petitioner has however heavily relied on the findings given by the trial court as with regard to certain admission made by the defendants- opposite parties about the knowledge of the suit by possessing a copy of the plaint said to have been sent from the lower court. On the basis of such findings of the trial court, it was sought to be contended that the 2 lower appellate court has committed a jurisdictional error in not discussing these findings and arriving at its own finding while reversing the order of the trial court without meeting the reasonings thereof. In the opinion of this Court, such contention is fit to be rejected as from bare reading of paragraph nos.8, 9 & 10, of the judgment of lower appellate court it would be found that the court has considered the evidence of Vijay Kumar Singh (AW-1) and in the light of the findings, the court below has come to a conclusion that there was actually no knowledge on the part of the Vijay Kumar Singh at the time of the initial proceeding of the suit and that such knowledge was actually acquired on 14.7.2002. For recording this aspect, the Court below has referred to the cross-examination of Vijay Kumar Singh and has come to a finding which reads as follows:- “It appears that Vijay Kr. Singh-A.W. 1 has clearly stated in his evidence that he got knowledge about the judgment and decree passed exparte in P.S. no. 90/94 on 14.7.02 from one Ram Birajan Singh and thereafter he and his wife came to Court and contacted their lawyer. No service of summons was served on them. In cross-examination this witness has stated that he can file ARJID/WI of P.S. no. 90/94 and he gave the same to his lawyer but the date of contacting the lawyer has not been elicited by the O.P./plaintiff in cross- 3 examination and therefore, it cannot be said that the appellant Vijay Kr. Singh contacted his learned lawyer during the pendency of the suit particularly in view of the fact that he has specifically stated that after getting knowledge on 14.7.04, he came to his lawyer on 15.7.02 and filed inspection slip and also instructed his lawyer to file the case.” These detailed considerations made by the lower appellate court while reversing the findings of the trial court, being essentially a question of fact, would not at least make out a case for jurisdictional error. That being so, this application is wholly misconceived and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)