Judgement Key Points

Honble SINGH, J.—This revision petition has been filed by the plaintiff against the order passed by the learned trial Court dated 17.5.2007 by which the learned trial Court has allowed the application filed by the defendant non-petitioner under Order 9 Rule 13 CPC.

2. The facts in brief are that the plaintiff petitioner filed a suit for eviction against the defendant tenant in the year 1993. The defendant was served. Written, statement was filed by the defendant issues were framed. After the plaintiffs evidence was closed the case was fixed for the defendants evidence. On the date when the case was fixed for the defendants evidence i.e. 6.11.2004 the defendant sought time to produce the evidence which was allowed on costs of Rs.200/- and the case was fixed for 2.12.2004. On 2.12.2004 the defendant was not present and again time was sought on behalf of the defendant and the case was adjourned despite the fact that the costs of Rs.200/- which have been imposed vide order dated 16.11.2004 had not been paid but on the request of the defendant the case was adjourned on 2.12.2004 to 17.1.2005 subject to payment of costs of Rs.200/-. The next date for fixed for the defendants evidence was 17.1.2005. On 17.1.2005 the defendant did not appear nor did the defendants counsel appear nor was cost of Rs.200/- (16.11.2004) and Rs.200/- (2.12.2004) paid. Hence, the learned trial Court passed the following order:-

17-1-2005 vf/koäk oknh mi-A izfroknhx.k vuq-A vf/koäk izfroknhx.k vuq-A ckj ckj vkokt fnykbZ tk pqdh gS U;k;ky; dk le; lekfIr ij gSA izfroknhx.k ds f[kykQ dk;Zokgh ,d rjQk dh tkrh gSA i=koyh iwoZ esa kgknr izfroknh dh fu;fr esa fopkjk/khu FkhA izfroknhx.k ds f[kykQ dk;Zokgh bd rjQk ds vknsk gks pqds gSaA

i=koyh okLrs cgl vfUre fnukad 24-2-2005 dks isk gksA**

3. Thereafter the case was fixed for final arguments on 24.2.2005, 21.3.2005 on those these dates which was fixed for final arguments neither the defendant nor his counsel appeared. On 21.3.2005 the arguments were heard and concluded but the defendant did not appear. Thereafter, on 25.5.2005, 8.7.2005, 11.8.2005 & 15.9.2005 on all these dates neither the defendant nor his counsel appeared and the argument heard and the exparte decree in favour of the plaintiff decreeing the suit for eviction was passed. Thus it is clear that even after seeking two adjournments on cost on 16.11.2004 and 2.12.2004 which cost were not paid, the defendant and his witnesses did not appear on 17.1.2005 and exparte order was passed thereafter neither the de-fendant nor his counsel appeared on six dates that were fixed for nearly nine months.

4. Thereafter the decree was put to execution by the plaintiff. The order of the learned trial Court shows in para 4 that notices of the execution application having being issued by the learned executing Court the same were served upon the defendant judgment debtor on 16.2.2006. Despite service upon the defendant non-petitioner none appeared on the side of the defendant even before the executing Court. On 23.5.2006 in execution of the decree possession was handed over of the premise in dispute to the decree holder plaintiff petitioner. After the decree came to be a executed and possession handed over the defendant non-petitioner filed an application under Order 9 Rule 13 CPC on 2.6.2006 for setting aside the exparte decree dated 15.9.2005.

5. In the application on page 3 in the grounds for setting aside the exparte decree it has been stated by the defendant as follows:-

^^2- ;g fd izfroknh ua- 1 fnukad 15-1-2005 dks viuh fjrsnkjh esa lkys ds ;gka fnYyh x;k Fkk vkSj fn- 20-1-2005 dks okil ykSVk FkkA fnYyh tkus ls iwoZ izfroknh ua- 1 vius odhy ls feyk Fkk rks mUgksaus dgk Fkk fd 17-1-2005 dks vki yksxksa dh U;k;ky; esa gkftj gksus dh vko;drk ugha gSA vki fnYyh tk vkosA eq>s vko;drk eglwl gqbZ rks eSa rqEgs i= }kjk lwfpr dj cqyk ywaxkA

3- ;g fd izfroknh ua-1 vius odhy ds vkoklu fn, tkus ij fnYyh pyk x;k blfy, fnukad 17-1-2005 dks iskh ij vkuk lEHko ugha gks ldkA

4- ;g fd izfrok

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