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2012 DIGILAW 672 (UTT)

Amarpal Singh v. Darshan Pal Singh

2012-10-19

B.S.VERMA

body2012
Judgment : 1. Heard Sri Bhupendra Singh, Advocate appearing on behalf of the petitioner. 2. By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the order dated 3-9-2012, passed by Special Judge [U.M.C]/Additional District Judge, Dehradun in Civil Revision No. 498 of 2009 Jaspal Singh Vs. Amar Pal Singh. 3. Brief facts of the case are that the petitioner is the defendant in the Suit No. 148 of 2010. He had filed an application U/O 9 Rule-7 C.P.C. read with Section 151 C.P.C. which was allowed by the 4th Addl. Civil Judge (J.D.) Dehradun vide order dated 23-8-2010, in exercise of the powers conferred U/S 151 C.P.C. Aggrieved by the order the plaintiff-respondent Jaspal Singh preferred Civil Revision No. 148/2010 before the District Judge, Dehradun, which was subsequently transferred to the Court of Special Judge(U.M.C.)/Addl. District Judge Dehradun. The learned Judge after hearing the parties in view of the Apex Court’s judgment Arjun Singh Vs. Mohidra Kumar and others, reported in AIR Supreme Court 993 (V. 51 C 128), has held that since the application has been filed under Order 9 Rule 7 C.P.C. after the exparte judgment was reserved by the court on the date after lunch and allowed the revision. 4. The learned counsel for the petitioner, has contended that the trial court by allowing the application of the petitioner U/O 9 Rule-7 C.P.C. has done substantial justice and interference was not warranted by the revisional court. In support of his contention he has relied upon the case of M/S Mohan Meakin Ltd., LKO and another vs. M/s Ahuja Transport Agency, LKO, passed in Civil Revision No. 44 of 1985, decided on April 25, 1985, reported in L.C.D. page 113. 5. I have perused the above judgment. The judgment which has been relied upon by the petitioner is not applicable to the facts of the case at hand. In that case application U/O 9 Rule 7 C.P.C. was rejected and thereafter application U/O 9 Rule 13 C.P.C. was allowed by the trial court and the revision was preferred. The revisional court has held that the application U/O 9 Rule 13 C.P.C. has rightly been allowed and the Court has held that the principle of res judicata is not applicable. 6. The revisional court has held that the application U/O 9 Rule 13 C.P.C. has rightly been allowed and the Court has held that the principle of res judicata is not applicable. 6. Learned counsel for petitioner also contended that court can exercise the powers U/S 151 C.P.C. and the learned Civil Judge has rightly exercised the powers U/S 151 C.P.C. while allowing the application and the revisional court has no jurisdiction to set aside the order. 7. The submission cannot be accepted for the simple reason that the power U/s 151 C.P.C. can be exercised where no specific provision has been made in the Act. 8. In the case at hand the application of the plaintiff-petitioner was allowed by the trial court in exercise of powers conferred U/s 151 C.P.C. The learned revisional court in view of Apex Court judgment has held that once the exparte judgment is reserved the application U/O 9 Rule 7 is in not maintainable and the application U/O 9 Rul3 13 C.P.C. is maintainable after passing the exparte order. I find no illegality in the impugned order. 9. However, it is clarified that after passing the exparte decree, as has been observed in the earlier part of the judgment, the petitioner would be at liberty to file the application U/O 9 Rule 13 C.P.C. for setting aside ex parte decree, if any. 10. The writ petition is dismissed in limine.