REPORTABLE

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 512/2020

Yusuf Hussain @ Guddu S/o Tafazzul Hussain Zaidi, R/o House

No. 4037, Under Naharwada School, Cheete Walon Ka Mohalla,

Jagannath Shah Ka Khurra, Chaukri Ramchandra Ji, Jaipur (Raj)

----Appellant

Versus

1.

Smt. Sabra Begum W/o Tafazzul Hussain Zaidi, R/o House

No. 4037, Under Naharwada School, Cheete Walon Ka

Mohalla, Jagannath Shah Ka Khurra, Chaukri Ramchandra

Ji, Jaipur (Raj) R/o Chaudhary Hospital, Housing Board,

Eidgah, Delhi Bypass, Jaipur

2.

Tarannu Bano @ Kahkasha D/o Tafazzul Haussain Zaidi,

R/o House No. 4037, Under Naharwada School, Cheete

Walon Ka Mohalla, Jagannath Shah Ka Khurra, Chaukri

Ramchandra Ji, Jaipur (Raj) R/o Chaudhary Hospital,

Housing Board, Eidgah, Delhi Bypass, Jaipur

3.

Tajammul Hussain S/o Tafazzul Hussain Zaidi, R/o House

No. 4037, Under Naharwada School, Cheete Walon Ka

Mohalla, Jagannath Shah Ka Khurra, Chaukri Ramchandra

Ji, Jaipur (Raj) R/o Chaudhary Hospital, Housing Board,

Eidgah, Delhi Bypass, Jaipur

4.

Smt. Khurshid D/o Tafazzul Hussain Zaidi, R/o Nauganwa

Sadat, District Muradabad (U.P.) At Present R/o

Chaudhary Hospital, Housing Board, Eidgah Delhi Bypass,

Jaipur

5.

Smt. Kishwar D/o Tafazzul Hussain Zaidi, R/o Saeed

Nagar, Mohalla Tejliyan, Agra (U.P.) At Present R/o

Chaudhary Hospital, Housing Board, Eidgah Delhi Bypass,

Jaipur

6.

Nighat Zaidi D/o Tafazzul Hussain Zaidi, Sillochikam, Bas

Badanpura, Jaipur

7.

Nusrat Jahan D/o Tafazzul Hussain Zaidi, R/o Chaudhary

Hospital, Housing Board, Eidgah Delhi Bypass, Jaipur

8.

Afsar Zaidi D/o Tafazzul Hussain Zaidi, Presently Residing

At Chaudhary Hospital, Housing Board, Eidgah Delhi

(2 of 9)

[CMA-512/2020]

Bypass, Jaipur

----Respondents

For Appellant(s)

:

Mr. Gaurav Sharma Saraswat

For Respondent(s)

:

Mr. Manoj Kumar Bhardwaj

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment

14/11/2022

1.

This is an appeal under Order 43 Rule 1 (d) of the Code of

Civil Procedure against refusal of the prayer of the appellant to set

aside ex parte decree in exercise of powers under Rule 13 of Order

IX CPC by order dated 14.10.2019 passed in Civil Misc. Application

No. 56/2013 (121/2014).

2.

A suit for partition of house standing on Plot No. 4037 was

going on between the parties. On 26.2.2009, an ex parte

preliminary decree was passed in the suit and on 18.1.2012, final

decree was also drawn ex parte. The appellant who was

defendant in the suit had already appeared in the suit

proceedings, however according to appellant, he was prevented by

sufficient cause from not appearing when the suit was called on

for hearing.

3.

The impugned order would reveal that the learned trial Judge

mainly relined on the material to support proper service of notice

on the defendant appellant and knowledge of the defendant

appellant regarding proceedings of the partition suit. Rule 13 of

Order IX CPC reads as follows:

13. Setting aside decree ex parte against defendant.

In any case in which a decree is passed ex parte against

a defendant, he may apply to the Court by which the

decree was passed for an order to set it aside; and if he

(3 of 9)

[CMA-512/2020]

satisfies the Court that the summons was not duly

served, or that he was prevented by any sufficient cause

from appearing when the suit was called on for hearing,

the Court shall m-ake an order setting aside the decree

as against him upon such terms as to costs, payment

into Court or otherwise as it thinks fit, and shall appoint

a day for proceeding with the suit;

Provided that where the decree is of such a nature that

it cannot be set aside as against such defendant only it

may be set aside as against all or any of the other

defendants also:

Provided further that no Court shall set aside a decree

passed ex parte merely on the ground that there has

been an irregularity in the se