The main legal point established in the judgment is the maintainability of the application under Order 9 Rule 13 of the Civil Procedure Code in the case of an exparte decree, the applicability of the principles of res judicata, and the verification of the application in consonance with the provision of Order 6 Rule 15 of the Civil Procedure Code.

Heard Mr. Sidhartha Singh, the learned counsel duly assisted by Mr. D. Barthwal, the learned counsel for the petitioner and Mr. Ramji Srivastava, the learned counsel duly assisted by Mr. Deepak Sharma, the learned counsel for the respondent.

2. The present writ petition has been filed against the order dated 29.05.2010 passed by the District Judge, Dehradun in Misc. Civil Appeal No.76/2010, whereby the District Judge allowed the appeal and has set aside the order passed under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C.’) and has further set aside the decree passed by the trial court.

3. The essential facts, which led to the passing of the decree by the trial court is, that on 31st March, 2009, the right to adduce the evidence of the plaintiff was closed and the trial court fixed 20th April 2009 for the evidence in chief of the defendant. The affidavit of the defendant and evidence was filed by the defendant on 23rd April, 2009 and the court fixed 26th May, 2009 for the cross examination of the defendant. It transpires that on 26th March, 2009 the plaintiff filed an application for the recall of the order dated 31st March, 2009. This application was allowed by an order dated 29th May, 2009 and the plaintiff was directed to file her evidence on affidavit on payment of cost of Rs.1000/- on or before 07th July, 2009. The trial court fixed 07th July, 2009 for the cross examination of the plaintiff.

4. It transpires that the trial court became vacant and accordingly, the case could not proceed on 07th July, 2009. The ordersheet indicates that various dates were fixed on account of the vacancy of the court. In this regard, the plaintiff filed a writ petition No.1405 of 2009 (M/S) alleging that she was leaving for the United States of America on 30th August, 2009 and that a direction be issued that her cross examination may be recorded by the trial court on or before 30th August, 2009. The writ court disposed of the said writ petition at the admission stage itself without issuing notice to the defendant, by an order dated 25th August, 2009 directing the trial court to cross examine the plaintiff petitioner before she leaves for the United States of America.

5. It transpires that the order of the High Court was filed before the trial court on 27th August, 2009. Since the trial court was vacant, the file was placed before the District Judge, who by an order of the same date, transferred the case to the court of the Vth Additional Civil Judge (S.D.), Dehradun. The relevant file was placed before the court on 28th August 2009 and the trial court issued notice to the counsel for the defendant as required under Rule 89-A of the General Rule (Civil) intimating him that the case would be taken up on 28th August, 2009. The process server intimated the court that the counsel for the defendant Sri J. K. Jain could not be found and that his Munshi (Clerk) had orally informed that Sri J. K. Jain was no longer appearing as the counsel for the defendant and that the file of the case had been taken away by the defendant. In the light of the report submitted by the process server, the court below found that the notices had not been served and issued directions for the issuance of a fresh notice and fixing 29th August, 2009 as the next date. On 29th August, 2009, the process server again submitted a report intimating that the chamber of Sri J. K. Jain was locked and, therefore, the notices could not be served. In the light of this report, the court fixed 31st August, 2009 and directed that fresh steps be taken for the issuance of notice to the counsel for the defendant.

6. On 31st August, 2009, the plaintiff moved an application 20C praying that, by an error, the affidavit of plaintiff in chief could not be filed earlier pursuant to the order of the trial court dated 29th May, 2009 and, therefore, prayed that the permission may be granted to file the affidavit. The court below, after considerin