The lack of personal service and the defendant's prayer in the application effectively superseded the ex parte proceeding, allowing the defendant to contest the suit.

Ram Surat Ram (Maurya), J. –

Heard Sri V.S. Kushwaha for the petitioner.

2. This petition has been filed for setting aside the order of Civil Judge, (Sr. Division) dated 22.1.2016 by which the application filed by defendant-2 under Order 9, Rule 7 CPC has been allowed and he has been given opportunity to file the written statement as well as contest the suit on the cost of Rs. 250/- and the order of Additional District Judge dated 1.4.2016 dismissing the revision of the petitioner filed against the aforesaid order.

3. Abdul Mazid, respondent-2 was defendant -2 in the suit i.e. Civil Suit No. 218 of 2003 (Mool Chand v. Pradeep Kumar). In this suit on 18.1.2005 service upon defendants were deemed sufficient on the basis of publication and the court below fixed 31.10.2005 for filing of written statement. On 31.10.2005, 2.12.2005 was the date fixed for framing the issues. On 2.12.2005 issues were framed on the basis of written statement filed by defendant-1 and the suit was proceeded ex parte against defendant-2. The suit is still pending before the trial court.

4. In the meantime, Abdul Mazid moved an application on 7.5.2015 under Order 9, Rule 7 CPC for setting aside the order dated 31.10.2005 and for permitting him to file written statement as well as to lead evidence in the suit. In this application the petitioner filed his objection and raised a ground that suit was not proceeded ex parte against defendant-2 on 31.10.2005 rather it was proceeded ex parte on 2.12.2005. Thus relief sought in the application was not liable to be granted. The trial court, however, by the order dated 22.1.2016 has held that as there was no personal service upon defendant-2 who was contesting party, therefore he should be allowed to file written statement and contest the suit. On this finding he allowed the application with the cost of Rs. 250/- and revision filed by the petitioner against the aforesaid order has been dismissed. Hence this petition has been filed.

5. Before this Court also, the argument of the counsel for the petitioner is that although in the application the prayer was made for setting aside the order dated 31.10.2005 but on 31.10.2005 the case was merely adjourned for 2.12.2005 for framing issues. Thus the order dated 31.10.2005 is not causing any prejudice to defendant-2. On the other hand by the order dated 2.12.2005, the case was proceeded ex parte against defendant-2 but there was no prayer for setting aside the order dated 2.12.2005. In such circumstances, the application was liable to be dismissed which was highly time barred but it had been illegally allowed.

6. I have considered the arguments of the counsel for the petitioner.

7. The prayer in the application dated 7.5.2015 is a composite prayer that the order dated 31.10.2005 be recalled and defendant-2 be permitted to file written statement and contest the suit. Thus a part of the prayer in the application, defendant sought for permission to file written statement as well as contest the suit. In such circumstances, the order proceeded ex parte against defendant-2 was superseded by the Civil Judge by his order dated 21.1.2016 and he permitted defendant-2 to file written statement and contest the suit. In effect the ex parte proceeding against defendant-2 shall be deemed to have been set aside and for this reason this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution is not inclined to interfere in the matter.

8. The petition has no merit, it is dismissed.

Petition dismissed.