Only a defendant can file an application under Order 9 Rule 13 of the CPC to set aside an ex parte decree.

ORDER:- This is an application under S.115 of the Code of Civil Procedure directed against the judgment and order dated 14-7-88 passed by the Assistant District Judge, Barpeta in Misc. Case No. 51/87 and Title Suit No. 21/87 rejecting the petition for addition of the petitioner as a defendant and for setting aside the ex parte decree.

2. The facts of the case may be briefly stated as follows:-

The opposite parties 1 and 2 Jagdish Choudhury and Smt. Rukmini Choudhury filed a suit against the opposite party 3 Shri Vikram Chand Daga who is the father of the present petitioner for eviction from the suit premises. The suit was disposed of on 30-1087 by an ex parte decree. The opposite party 3, Shri Vikram Chand Daga was the defendant in the said suit who filed a petition under O. 9, R. 13, C.P.C. for setting aside the ex parte decree. In course of hearing of the aforesaid petition, after the recording of the evidence of the parties at the argument stage, a petition was filed by the present petitioner stating that he was the real tenant of the suit premises and not his father Vikram Chand Daga and he should be impleaded as a party in the original suit. By the said petition, the petitioner also prayed for setting aside the ex parte decree by treating the application under O.9, R. 13, C. P. C.

3. The Assistant District Judge heard the said petition and held that the petitioner was not a tenant, and as such, he had no locus standi in the suit and, therefore, there was no necessity of impleading him as a party to the suit. The petition was rejected on that ground. Against the said order, the present revision petition has been filed.

4. Mr. R.L.Yadav, learned counsel for the petitioner submitted that the finding of the Assistant District Judge is wrong inasmuch as the receipts filed by him showed that he was a tenant and as such, the Assistant District Judge acted erroneously and without jurisdiction in rejecting his petition.

5. Mr. J.N.Sarma, learned counsel for the opposite parties 1 and 2, however, submitted that the petition filed by the petitioner before the Assistant District Judge itself was not maintainable in view of the provisions of O.9, R.13, of the C.P.C. which permits filing of such petition only by the defendant. According to Mr. Sarma, as the petitioner was not a defendant in the suit decided ex parte, he had no right to file the petition under O.9, R.13, C.P.C. and the petition ought to have been rejected on that ground alone without going into the merits of the petition as to whether the petitioner was a tenant or not.

6. I have considered the submissions of the learned counsel for both the parties. I propose to deal with the objection regarding maintainability of the petition filed by the petitioner under O.9, R.13 for setting aside the ex parte decree in a suit where admittedly the petitioner was not a defendant. Rule 13, of Order 9 of the C.P.C., which provides for setting aside the decree passed ex parte against the defendant reads as follows:-

"13, Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also".

A bare reading of O.9, R.13 makes it clear that an application under the said provisions can be filed only by a defendant and not by any other person. This view gets full support from a decision of this Court in the ca