U.P. HOTELS LTD. Vs. MEENAKSHI VERMA

JUDGEMENT

(1.) C.M. 13181/2013 This application is disposed of in terms of order of 8th Oct., 2013. FAO 243/2012 & C.M.10316/2012 Impugned order of 12th April, 2012 rejects appellant's application under Order 9, Rule 13 of Civil P.C. to set aside an ex parte decree of 26th March, 2012 passed on an application under Order 12, Rule 6 of Civil P.C. whereby possession of the suit property has been decreed in favour of respondent-plaintiff.

(2.) The challenge to impugned order in this appeal by learned counsel for appellant is on the ground that it is quite evident from the order of 26th March, 2012 (Annexure A-37) that appellant-defendant was not present when this order was passed and even on a prior date, i.e. on 12th March, 2012, appellant was not present and so, order of 26th March, 2012 is an ex parte order and it is so recorded in paragraph No.2 of impugned order. It is submitted by appellant's counsel that trial court has not considered appellant's plea of a decree being passed in the absence of a party to be an ex parte decree and has erroneously dismissed appellant's application under Order 9, Rule 13 of CPC.

(3.) To submit that remedy of filing of appeal as well as an application under Order 9, Rule 13 of Civil P.C. is available to a party against a decree which is passed behind the back of a party, reliance is placed by appellant's counsel upon Supreme Court's decision in Bhanu Kumar Jain Vs. Archana Kumar and Another, AIR 2005 SC 626. Reliance is also placed upon Supreme Court's decisions in Tea Auction Ltd. Vs. Grace Hill Tea Industry and Another, (2006) 12 SCC 104 and Asit Kumar Kar Vs. State of West Bengal and Ors., (2009) 2 SCC 703 to submit that when a decree on admission is passed in the absence of one party, then it would be in the nature of an ex parte decree and it is a basic principle of natural justice that no adverse orders should be passed against a party without affording him an opportunity of hearing.