Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 4383 of 2019 Petitioner :- Smt. Shabroon Nisha And 7 Others Respondent :- Smt. Manjoo Devi And Another Counsel for Petitioner :- Raghvendra Dwivedi Counsel for Respondent :- Manish Tandon Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the petitioners and Sri Manish Tandon, learned counsel for respondent no.2.
It is admitted to the parties that respondent no.1 Manju Devi had sold the suit property to respondent no.2 during pendency of the proceedings on 7.2.2006 and whereafter it is respondent no.2 who is contesting the proceedings. Sri Manish Tandon submitted that in such circumstances, the petition could be disposed of finally without notice being issued to respondent no.1.
The instant petition has been filed challenging the orders passed by the Appellate court in Misc. Appeal No.32 of 2013 rejecting various miscellaneous application as well as the final order dated 9.8.2018 dismissing the appeal. The suit instituted by respondent no.1 bearing no.864 of 2000 against petitioner no.1 (since dead) and petitioner no.2 for their eviction from the suit property was decreed exparte on 29.4.2004. The petitioners no.1 and 2 filed an application under Order 9 Rule 13 CPC registered as Misc. Case No.36/74 of 2005 for setting aside the exparte judgement and decree dated 29.4.2004. Their specific case was that their signatures and thumb impressions had been forged on the summons. It was also their case that the decree was obtained by playing fraud inasmuch as a previous suit for the same relief filed by respondent no.1 being Original Suit No.505/1998 was pending on the date of filing of Original Suit No.884 of 2000. It was later dismissed in default on 28.2.2006. The said fact was concealed from the trial court. The application under Order 9 Rule 13 CPC was rejected by the trial court by order dated 20.2.2013. Aggrieved thereby, the petitioners filed Misc. Appeal No.32 of 2013. During pendency of the appeal, they filed an application 64-Ga alongwith affidavit 65-Ga under Order 41 Rule 27 CPC. It was rejected by the appellate court by order dated 21.4.2018. Thereafter, the appeal has been dismissed by impugned order dated 9.8.2018.
Learned counsel for the petitioners submitted that the exparte decree was obtained by playing fraud upon the court. The factum of filing of the earlier suit for same relief was concealed.
The summons do not bear the signatures/thumb impressions of the defendants. Their application for cross-examination of the process server was wrongly rejected. It is further submitted that application 30-Ga filed by the petitioners in appeal for obtaining report of handwriting expert in respect of the signatures and thumb impressions upon the summons was also wrongly rejected. It is urged that because of wrong rejection of these applications, the appellate court has arrived at an incorrect conclusion.
Sri Manish Tandon, learned counsel appearing on behalf of respondent no.2, the main contesting party states that he has no objection in case the final order passed by the appellate court dated 9.8.2018 as well as the orders rejecting the application for additional evidence and for permission to obtain report of handwriting expert in respect of the signatures and thumb impressions on the summons are set aside and the Appellate court is directed to decide the appeal afresh after allowing these applications.
Accordingly and with consent of learned counsel for the parties, the impugned order dated 9.8.2018 passed in Misc. Appeal No.32 of 2013 is set aside. The order dated 21.4.2018 and 30.5.2015 passed on miscellaneous applications are also accordingly set aside. The appellate court shall now permit the petitioners to obtain report of handwriting expert in respect of the signatures/thumb impressions on the summons and they shall also be at liberty to cross-examine the process server. The respondents shall have right to file evidence in rebuttal. The appellate court shall thereafter proceed to decide the appeal on merits, taking into consideration the additional evidence led before it by the parties. The entire exercise in this regard shall be concluded within a period of six months from the date of receipt of a certified copy of this order.
In consequence, the petition stands allowed in part.
(Manoj Kumar Gupta, J) Order Date :- 22.8.2019 SL