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HARKESH MANUJA
Rukmani Devi – Appellant
Versus
Ashok Kumar – Respondent
HARKESH MANUJA J.
CM-12377-C-2023
Prayer in the present application is for preponement of the date of hearing in the main case, which is fixed for 23.01.2024.
On 07.11.2023, notice of the application was issued and accepted by Mr. Tanmoy Gupta, Advocate on behalf of contesting respondents No.1 and 2.
Having heard learned counsels for the parties and gone through the contents of the application, the same is allowed and the date of hearing in the main appeal is preponed from 23.01.2024 to today itself i.e. 14.11.2023, for its final disposal.
Main case
1. By way of present appeal, challenge has been laid to the judgment and decree dated 21.07.2023 passed by the Appellate Court, whereby, ex-parte judgment and decree dated 22.05.2017 passed by the Trial Court has been set-aside and the matter has been sent back to the Trial Court for deciding the suit afresh, upon hearing respondents No.1 and 2/defendants No.5 and 6.
2. Briefly stating, appellant-plaintiff filed a suit for declaration as well as seeking consequential relief of permanent injunction, claiming herself to be owner in joint possession to the extent of 1/7th share of the suit property, situated within the revenue estate of village B
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.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
The judgment emphasizes the need for substantial justice over technical considerations, warranting a full-length trial to investigate rival claims and the theory of probability.
The court emphasized the liberal construction of 'sufficient cause' for setting aside an ex parte decree and the need to balance the interests of both parties to prevent miscarriage of justice.
The Trial Court's decision in favor of the plaintiffs/respondent Nos. 1 and 2 and against the appellant without ensuring notice to the appellant and/or his counsel had been effected was in violation ....
The court emphasized the necessity of adhering to procedural rules under the Code of Civil Procedure to ensure that ex-parte decrees are justly administered and not issued without proper evidence of ....
The Court emphasized the importance of due consideration in ordering substituted service and the need for clear knowledge of the particular decree sought to be set aside.
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