JITENDER SINGH TYAGI Vs. DIRECTOR OF EDUCATION

JUDGEMENT

(1.) AN ex parte decree for a sum of Rs. 21,600/- was passed against the petitioner (Shri H. N. Sawhney, now deceased) vide order dated 20. 1. 2003. The petitioner moved an application under Order 9 Rule 13 CPC for setting aside the ex parte decree which was dismissed by the Civil Judge vide order dated 28. 9. 2006. Against that order, the petitioner preferred an appeal which was also dismissed by the first Appellate Court on 28. 11. 2006. Against that first appeal, the petitioner preferred RSA No. 48/2007 which was dismissed by this court on 25. 3. 2008 giving the petitioner liberty to file a Civil Revision petition or a Petition under Article 227 of the Constitution of India, since the rsa was not maintainable. The petitioner has filed this Civil Miscellaneous under Article 227 challenging the order dated 28. 11. 2006 passed by the first appellate Court dismissing application under Order 9 Rule 13 CPC and also the order dated 28. 9. 2006.

(2.) A perusal of petition filed by the petitioner would show that the petitioner has raised several questions of law to be decided by this Court as if this was a second appeal. The scope of Article 227 of the Constitution is very limited and the Court has only to ascertain that the order passed by the trial Court does not suffer from any material irregularity and trial Court has acted within its jurisdiction. It is not the case of the petitioner that Courts below acted beyond jurisdiction.

(3.) IN any case, looking into the facts of the case, it is found that the landlord (respondent herein) had filed a suit for recovery of rent of premises for three years amounting to Rs. 21,600/ -. In this Suit, the petitioner was appearing up to the stage when the case was fixed for plaintiff"s evidence thereafter, the petitioner did not appear and the suit was decreed ex parte. The petitioner moved an application under Order 9 Rule 13 CPC giving various reasons for his non-appearance. One of the reasons was that during pendency of suit, plaintiff moved an application for transfer of case and the plaintiff"s counsel was to inform the defendant"s counsel about result of the transfer application. Since, plaintiff"s Counsel did not inform the result of the transfer application, the defendant stopped appearing in the suit. This is a strange contention. There was no responsibility on plaintiff"s counsel to inform about the result of transfer application to the opposite counsel. The opposite counsel and the parties are supposed to appear in the matter and know the result themselves. Even otherwise, it was recorded on 27. 7. 1999 in presence of the Counsel for the defendant that the application for consolidation had been dismissed, so the question of informing defendant"s counsel did not arise. Thereafter, the matter continued before the Civil Judge, it was transferred from one Civil Judge to another and fixed on 28. 8. 2000. On that day, both the parties appeared in person and the matter was posted for further proceedings. It is at that stage that the defendant had started absenting and was proceeded ex parte.