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2016 DIGILAW 417 (ALL)

Chunni Lal v. Mitrapal @ Babua

2016-02-02

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri A.K. Srivastava, learned counsel for the petitioners and Preet Pal Singh Rathore, learned counsel appearing for the respondent. 2. This is a writ petition under Article 226 of the Constitution of India challenging the judgement and order dated 06.09.2011 passed by the District Judge, Badaun, in Misc. Appeal No.53 of 2010, Mitrapal v. Chunni Lal and others. 3. The defendant-respondent executed an agreement to sell some immovable property on 22.12.2004 in favour of the plaintiff-petitioners. They instituted Original Suit No. 46 of 2006 on 30.01.2006 for specific performance of the said agreement. The said suit was decreed ex-parte on 11.01.2007. The defendant-respondent applied under Order 9, Rule 13 CPC for setting aside the aforesaid ex-parte decree vide application dated 21.03.2007. The said application was rejected vide order dated 29.09.2010. This order was challenged by means of the above misc. appeal before the appellate court. The appellate court set aside the order dated 29.09.2010 and allowed the application of the defendant-respondent filed under Order 9, Rule 13 CPC and thus, the decree dated 11.01.2007 was also set aside with the direction to the trial court to decide the suit on merits. 4. In assailing the impugned judgement and order, the submission of Sri Srivastava is that the appellate court only on equity has allowed the application under Order 9, Rule 13 CPC. The appellate court has not dealt without the reasoning given by the trial court for rejecting the application. The appeal without developing the various facts, in which the application under Order 9, Rule 13 CPC came to be rejected. 5. I have perused the orders dated 29.09.2010 and 06.09.2011. 6. The suit was decreed ex-parte on 11.01.2007 as the defendant-respondent had refused to take the summons. The defendant-respondent applied for setting aside the ex-parte decree on 21.03.2007 alleging that he acquired knowledge of the same only on 22.02.2007. The said application though filed after 30 days of the ex-parte decree but within time from the date of knowledge. 7. The appellate court looking to the facts involved in the suit opined that it would be too harsh to allow such an ex-parte decree to stand and a such ordered for setting aside the same with the direction to decide the suit on merits. 8. 7. The appellate court looking to the facts involved in the suit opined that it would be too harsh to allow such an ex-parte decree to stand and a such ordered for setting aside the same with the direction to decide the suit on merits. 8. There was no evidence on record, which could have proved that the defendant-respondent was playing fraud or that he was deliberately avoiding service of the summons to delay the disposal of the suit. In absence of such evidence, the view taken by the appellate court that such matters requires reconsideration afresh as it is always in the interest of justice that the lis between the parties be decided on merits cannot be faulted with. 9. In view of the aforesaid facts and circumstances, I do not consider it to be a fit case to interfere with the discretion so exercise by the appellate court in allowing the application under Order 9, Rule 13 CPC and setting aside the ex-parte decree. 10. Accordingly, the writ petition is dismissed as devoid of merit with the direction to the court of first instance to proceed and decide the O.S. No. 46 of 2006 afresh on merits in accordance with law, expeditiously, preferably, if possible, within a period of one year. 11. It is made clear that the defendant-respondent would cooperate with the proceedings and would not seek any unwarranted adjournment and any adjournment taken by the defendant-respondent would not be allowed without imposing cost of at least of Rs. 1,000/- per month. 12. It is further provided that till the decision of the suit, the possession of the petitioners over the land in dispute as has been directed to be maintained by the order of this Court dated 19.02.2014 shall be maintained and shall not to be disturbed.