SHYAM SUNDER SHARMA Vs. PANNALAL JAISWAL

JUDGEMENT

(1.) Respondent No.1 herein filed Title Suit No.89 of 1992 on the file of the Munsifs Court at Howarh against the appellant and others for a declaration of his title as a Thika Tenant in respect of the plaint A schedule property and for other consequential reliefs. The appellant herein-defendant No.1 in the suit, entered appearance and contested the suit and the application for interim injunction filed by the plaintiff. The application for interim injunction was heard and the same was dismissed by the trial court. The plaintiff filed an appeal against that order under Order XLIII, Rule 1 of the Code of Civil Procedure, 1908 (for short "the Code") and that appeal was also dismissed by the District Judge on 16-3-1994.

(2.) The suit itself stood posted to 8-10-1996. The appellant-the first defendant, did not appear. The evidence of the plaintiff was recorded. On 9-10-1996 the plaintiff filed two applications-one for an amendment of the plaint and the other for certain corrections in the plaint. Those applications were allowed the same day in the absence of any opposition. In view of his absence, the first defendant, the appellant, was set ex parte and on 11-10-1996, the suit was decreed ex parte.

(3.) On 16-11-1996, the first defendant, the appellant, filed a petition under Order IX, Rule 13 of the Code accompanied by an application under Section 5 of the Limitation Act for condoning the delay in filing the petition for setting aside the ex parte decree. Both the applications were opposed by the plaintiff. On 21-11-1996, the first defendant-the appellant, also filed an appeal, Title Appeal No.157 of 1996, against the ex parte decree along with an application for condoning the delay in filing that appeal as enjoined by Order XLI, Rule 3A of the Code and invoking Section 5 of the Limitation Act. On 17-9-1998, the trial court allowed the application filed by the first defendant under Section 5 of the Limitation Act and condoned the delay in filing the petition under Order IX, Rule 13 of the Code. The plaintiff challenged that order in the District Court in revision, but the revision was dismissed on 11.8.2000. There was a further revision to the High Court which was dismissed on 14-9-2000.