HOSHIAR SINGH Vs. RAM DEV

JUDGEMENT

(1.) This revision petition has been filed by the plaintiff against the order of the Sub-Judge, dated 30th September, 1975, by which he has set aside the ex parte decree passed in favour of the petitioner against the respondents on 10th January, 1975 and has restored the suit to its original number on payment of Rs. 100/ as costs.

(2.) The petitioner had instituted the suit for a permanent injunction restraining the respondents from dispossessing the petitioner from the land in dispute and from demolishing the boundary wall of the land in suit. The suit was contested and the evidence of the plaintiff had been closed. Opportunity was given to the defendant-respondents to adduce their evidence and they produced only one witness, but failed to produce the remaining evidence. On 10th January, 1975 the court decided to proceed ex parte against the defendants and answered the issues on the material placed on the file by the petitioner. As a result, it decreed the suit and granted the injunction restraining dispossession of the petitioner from the land in dispute and also awarded costs. On that date the respondents were not present.

(3.) Subsequently, the respondent moved an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parts decree. This was set down for trial and the court came to the conclusion that sufficient cause had been made out for setting aside the ex parte decree and the absence of the respondents before me was unintentional. The court also heard the allegations and the evidence produced on his behalf to the effect that a witness had been examined by them on 15th November, 1974 but the defendant. Ram Dev, and his counsel were present and they understood the next date to be 30th December instead of 20th December, 1974; and since 30th December had been declared a holiday they expected that a notice of the date of hearing fixed by the court would be issued to the parties, but on learning that the suit had been decreed ex parte, the respondents moved an application for setting it aside very expeditiously. The court also heard the evidence of the clerk of the Advocate to the effect that on the envelope of the brief of the Advocate, the date of hearing next after 15th November was noted as 30th December, 1974. The court accepted the statement that the mistake on the part of the respondents was bona fide and so it allowed the application and set aside the decree on payment of costs. Feeling aggrieved by this order, the plaintiff-petitioner has come up in revision.