IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2175 of 2008 GAURI PASWAN Versus PIYARIA DEVI & ORS ----------- 2 09.01.2009 Heard counsel for the petitioner. The solitary question involved in this Civil Revision application is as to whether the order of the lower court setting aside the ex-parte decree of the trial court is based on cogent appreciation of evidence or not. Normally, the finding of fact recorded by the lower appellate court could not have been questioned by the petitioner specially when there is no averment in the entire civil revision application that such finding are based on any error of record. Counsel however had submitted that the Ground No. IX of this civil revision application was with regard to such error of record. In the opinion of this Court, even this part of submission of counsel for the petitioner is wholly incorrect inasmuch as Ground No. IX reads as follows:- “that the learned appellate court has committed gravious error in observing that the name of appellant Piyaria Devi is not clearly mentioned in summon or memo of appeal.” As a matter of fact, on the issue of service of summons and the approach of the trial court in proceeding to take up the case for ex- parte hearing has been discussed at length in paragraph Nos.13,14 and 15 of the impugned order which needs to be quoted herein below : - “In presence of aforementioned findings which as stated - 2 - above could not be demonstrated to be based on any error of record, the submission of the counsel for the petitioner that the court below has committed an error much less jurisdictional error in allowing the restoration of the suit by setting aside the ex-parte decree is wholly unacceptable and is by itself good enough for dismissing this application. Counsel for the petitioner has however, contended that the application filed under Order IX Rule 13 of the Code of Civil Procedure was itself barred by limitation and to that extent he has referred to the order of the trial court to contend that the opposite party No.1, Piyari Devi had full knowledge of ex-parte decree in the suit some 21 years back as would be evident from her evidence. This aspect of the matter also has been dealt by the lower appellate court by a great length and the findings recorded therein in paragraph No.11 could have sealed the matter but then counsel was quite emphatic by referring to the evidence of Piyari Devi that there was certain error in recording the aforementioned findings of the lower appellate court. First of all this Court would quote the paragraph No.11 of the judgment of the lower appellate court and thereafter would also refer to the portion of the evidence of Piyari Devi which is relied by the counsel for the petitioner. Paragraph No.11 reads as follows:- “v/khuLFk U;k;ky; }kjk ikfjr vkns”k fnukad 30@11@06 ds voyksdu ls Li’V gksrk gS fd v/khuLFk U;k;ky; us vkosnd lk{kh la0&2 I;fj;k nsoh {vosfndk} ds izfr&ijh{k.k ds ml dFku dks vk/kkj cuk;k gS ftlesa - 3 - mlus dgk gsS fd 24 o’kZ iwoZ xq:pj.k us tehu ds laca/k esa eq> ij eqdnek Ykk;k Fkk ijUrq vkosfndk ds bl dFku dks eku ysuk fd mls bl okn dh tkudkjh 24 o’kksaZ ls gS xyr gksxk D;ksafd bl dFku dk rkRi;Z dsoy ;gh fy;k tk ldrk gsS fd xq:pj.k us 24 o’kZ iwoZ ml ij eqdnek yk;k Fkk tSlk] fd vkosfndk us vius vfHkdFku esa Hkh dgk gS fd mls nkf[ky [kfjt okn ds vkns”k ds udy izkIr djus ds mijkUr LoRo okn mlesa ikfjr ,di{kh; vkns”k fnukad 3@11@83 dh tkudkjh gqbZ A mDr tkudkjh ds vk/kkj ij Hkh mldk dFku lgh izrhr gksrk gsS fd 24 o’kZ iwoZ xq:pj.k us tehu ds laca/k esa ml ij eqdnek izLrqr fd;k Fkk A ,aslh fLFkfr esa vkosfndk ds bl dFku dks bl :i esa dnkfi ugha fy;k tk ldrk fd mls bl okn dh tkudkjh iwoZ ls gh Fkh A “ As a matter of fact, the said finding was passed on a correct appreciation of the evidence of Piyari Devi inasmuch as in her cross-examination in paragraph No.1 and 2 she had strictly supported her case and in this regard the two paragraphs of the evidence of Piyari devi is quoted herein below :- “ 1. 24 o’kZ iqoZ xq:pj.k us tehu ds lEcU/k esa eq> ij eqdnek yk;k Fkk A ml eqdnek ds dkxt ds ckjs esa eSa ugha tkurh gwWa eq>sa ml eqdnek ds lEeu ds ckjs esa Hkh irk ugha gSa A ml eqdnek ds ikSus rhu lky ds ckn ge jlhn dVokus xbZ Fkh A jlhn dVokrs le; ml eqdnek ls - 4 - lEcfU/kr dksbZ dkxt deZpkjh ds ikl ysdj ugha xbZ Fkh A 2. esjk jlhn 21 lky ls ugha dVk Fkk A jlhn dVokus xbZ rc deZpkjh ls irk pyk fd xq:pj.k us fMdzh djok fy;k gS A mDr deZpkjh dk uke ;k irk ugha ;kn gSa A ml deZpkjh dh cnyh gks xbZ gS A cnyh dc gqbZ ugha tkurh A “ From the conjoint reading of evidence of Piyari Devi, it is clear that she had no knowledge of the ex-parte decree some 21 years or 24 years back as is being claimed by the petitioner inasmuch as she has clearly stated that when she had gone to the office of the Karamchari, she was not aware of the ex-parte decree. What was actually stated by her was that she had gone for getting revenue receipt and at that point of time she had not gone with any paper of the concerned suit. In that view of the matter, it cannot be said that from any part of the evidence of Piyari Devi it can be even remotely inferred that she had knowledge of ex-parte decree for all those 24 years. Counsel next contended that his case was covered by the judgment of the Apex Court in the case of Mahabir Singh Vs. Subhash & Ors. reported in 2008(1) PLJR 75(SC). From a perusal of the aforementioned judgment it would be clear that in the - 5 - case before the Apex Court one of the defendant had approached the plaintiff for not giving effect to the ex- parte decree one and half years prior to the filing of the application for setting aside the ex-parte decree and on that premises the Apex Court had held that the application filed under Order IX Rule 13 was clearly barred by limitation. Here there is no such case inasmuch as the evidence of Piyari Devi as discussed above would go to show that even other wise this aspect of the matter in fact has gone at length by the lower appellate court and this Court would not find any reason to differ with the such findings recorded by the lower appellate court. That being so, this Civil Revision application is wholly misconceived and is hereby dismissed. Bibhash (Mihir Kumar Jha J.)