JAGJIT SINGH SAINI Vs. SMITA

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India, petitioner has challenged the order dated 11th January, 2013 passed by the Ld. Additional District Judge(N), Tis Hazari, Delhi whereby the Misc.Civil Appeal no.7/2012 filed by the respondent herein i.e., defendant before the trial court, has been allowed and the ex parte order dated 3rd March, 2012 passed by the learned Civil Judge dismissing her application under order 9 Rule 7 CPC has been set aside.

(2.) THE petitioner herein is a plaintiff before the learned trial court and has filed a suit for possession and mesne profits against respondent i.e., defendant before the trial court on 29th May, 2008 wherein the respondent/defendant was proceeded ex parte vide order dated 13th October, 2009. On 11th January, 2010, respondent/defendant had appeared before the Ld.trial court and has filed an application for inspection, restoration etc. Thereafter, she stopped appearing and again on 30th October, 2010 she appeared through Legal Aid Counsel. It is stated that on 22nd March, 2011, ex parte evidence of petitioner/plaintiff was recorded. It is further stated that on the said date, respondent/defendant filed power of attorney and thereafter had moved an application under Order 32 Rule 3 CPC through her counsel but the same was snatched by the respondent from the court record and ultimately she had tendered unconditional apology before the court. It is further stated that on 1st October, 2011, an application under Order 9 rule 7 CPC was filed and the said application was dismissed by the trial court on 3rd March, 2012. Aggrieved with the said order, respondent/defendant had filed an appeal before the Ld. Additional District Judge. After hearing both the parties, Ld. Additional District Judge had set aside the impugned order in the interest of justice, subject to costs of Rs. 5000/- and has given respondent/defendant one opportunity to file written statement, one opportunity to cross-examine the petitioner/plaintiff 's witness and one opportunity to lead her evidence. Aggrieved with the same, present petition is filed.

(3.) I have considered the submissions made and gone through the material on record.