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SANJAY DHAR
Abu Hussain – Appellant
Versus
Mohammad Abdullah – Respondent
JUDGMENT :
1. By this order, preliminary objection raised by the learned counsel for the respondent No.1 with regard to the maintainability of this appeal is proposed to be determined.
2. Before coming to the preliminary objection raised by the learned counsel for the respondent No.1, let me give a brief background of the facts leading to filing of this appeal.
3. It appears that the respondent No.1 had filed a suit against the appellant and respondents 2 and 3 before the Court of Principal District Judge, Kargil. Through the medium of said suit, the plaintiff had sought a declaration that he is owner of land measuring 1½ kanals situated at Khurbathang Kargil, which he had purchased from the appellant and respondent No.3, who happened to be the proforma defendants No. 2 and 3 to the suit. A permanent injunction restraining the defendants from proceeding with the construction of house on the aforesaid land with a mandatory injunction directing the defendants to remove the material from the suit land was also sought
4. It appears that the suit was decreed in ex-parte in favour of the plaintiff i.e. the respondent No.1 herein, by virtue of an ex-parte judgment and decree dated 13.12.2019.
Suit – Exparte judgment and Decree – Maintainability Appeal - When an application under Order 9 Rule 13 of the CPC is dismissed, the defendant can only avail a remedy available there against, namely,....
Where there has been appeal against decree passed ex-parte and appeal has been disposed of on any ground other than withdrawal, application for setting aside ex-parte decree will not lie.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
The different scopes of proceedings under Order 9 Rule 13 CPC and Section 96(2) of CPC, and the principle of estoppel in challenging the withdrawal of an application.
An appeal can proceed without a decree if the judgment is provided, and technical defects do not affect the substantive merits of the case.
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