HEADNOTE

Code of Civil Procedure, Svt. 1977 (1920 A.D.)

Section 100 r/w Order 7 Rule 11 and Section 105 , 139 of LAND REVENUE ACT , Svt. 1996--Second Appeal--Ex parte decree--Application regarding rejection of plaint pending--Application does not fall within any of the clauses provided in Order 7 Rule 11, which would have warranted the rejection of the plaint of the respondent--Even if, it is assumed that, Respondent was barred by any law to maintain the suit in question, yet indisputably neither Section 105 nor Section 139 of the LAND REVENUE ACT referred in the application barred with the institution or the trial of the suit filed by the Respondent--Impugned judgment(s) and decree(s) passed by the courts below, seemingly, have been correctly and rightly passed having regard to the case setup by Respondent 1 and evidence in ex parte led in support thereof--No interference--Appeal dismissed.

JUDGMENT :

1. The instant Civil Second Appeal filed under section 100 of the Code of Civil Procedure (herein, for short 'CPC') is directed against judgment and decree passed by the Court of Sub-Judge Katra dated 15.12.2008 in a suit titled as "Baldev Raj Sharma v. Swarn Salaria & Ors." (for short, 'the Trial Court') as also judgment and decree passed by the Court of District Judge Reasi in an appeal titled as "Swaran Salaria v. Baldev Raj & Ors." dated 30.04.2009 (for short, 'the Appellate Court').

2. The facts leading to the filing of instant Civil Second Appeal as emerging from the record would reveal that a suit for injunction came to be filed by the plaintiff/ Respondent 1 herein before the trial court in respect of a patch of a land covered under Survey No. 17 situated at village Kundarodian, Katra (for short, 'the Suit Land') impleading the present appellant as defendant 1 besides other defendants, on the premise that the plaintiff/Respondent 1 herein is one of the co-owner in possession of the land covered under Survey No. 12, 14, 15, 16, 17, 18 & 212 situated at village Kundrorian Katra in terms of 04 sale deeds executed on 01.03.2000 and that the defendant 1/appellant herein had also purchased land measuring 42 Kanals under survey No. 11 adjacent to the land of the plaintiff/Respondent 1 herein in terms of 03 sale deeds dated 19th and 20th of August, 1999 and constructed a hotel thereon under the name and style of Hotel SIM-SUM and for making an approach road for the said hotel, started cutting and digging land covered under Survey No. 17 without any legal authority or right amounting to interference into the land owned by the plaintiff/Respondent 1.

3. The suit (supra) is stated to have proceeded with the trial before the trial court and on 15.05.2006 the defendant/appellant herein came to be set exparte, whereafter, the defendant/appellant herein, appeared through his counsel on 27.04.2006, yet absented on 21.04.2006 and came to be proceeded exparte again on 19.02.2007, whereafter again, the defendant/appellant herein entered appearance through his counsel on 15.03.2007 and filed an application for setting aside exparte proceedings but again absented and came to be proceeded exparte on 20.08.2007.

4. On 12.11.2007 defendant/appellant filed 02 applications before the trial court wherein, objections came to be invited from the plaintiff/respondent herein, however, the defendant/appellant herein thereafter, did not appear in the matter, resulting into calling upon, the plaintiff/respondent herein by the trial court to produce evidence in exparte, w