HARMINDER SINGH Vs. SAROJ DEVI

JUDGEMENT

(1.) This first appeal is filed under Order 43 Rule 1(d) CPC impugning the order of the court below dated 2.4.2013 which has dismissed the application filed by the appellant-defendant for setting aside the ex-parte judgment and decree of specific performance of agreement to sell dated 15.3.2007.

(2.) The facts of the case are that respondent-plaintiff filed the suit for specific performance with respect to the property admeasuring 50 sq. yds situated in K.No. 330, Village Siraspur, Swaroop Nagar, Delhi. Total consideration under the agreement to sell was Rs. 3,50,000/- and by means of different paragraphs in the plaint, it is said that a total sum of Rs. 3 lacs was paid to the appellant-defendant. The payments to the appellant-defendant were confirmed by the receipts executed by the appellant-defendant. Appellant-defendant appeared in the suit through his wife who was a special power of attorney holder, filed written statement, but thereafter since there was no appearance on behalf of the appellant and his wife, appellant was proceeded ex parte by the order dated 6.10.2009. Evidence was led on behalf of the respondent-plaintiff on 11.1.2010 and evidence was closed on that day. Final arguments were thereafter heard and the suit was decreed in terms of the judgment and decree dated 25.2.2010.

(3.) The court below has dismissed the application under Order 9 Rule 13 CPC on account of the admission made by the appellant-defendant in his application under Order 9 Rule 13 CPC which showed that appellant-defendant had appointed his wife as a special power of attorney holder in view of the fact that he used to remain out from his residence for long periods of time as he was a driver and his wife had appeared in the suit on the basis of the Special Power of Attorney(SPA). It is pleaded by the appellant/defendant that the SPA has not been filed. The relief in the application under Order 9 Rule 13 CPC has been denied on account of appellant/defendant admitting the factum of the appellant-defendant having executed a power of attorney in favour of his wife who had appeared and filed written statement in the suit. This is stated in para-3 of the application under Order 9 Rule 13 CPC and which reads as under:-