M NANU Vs. K C JOSEPH

JUDGEMENT

(1.) Revision petitioners are the plaintiffs. The suit is one for injunction against trespass. Defendants are brothers and adjacent property owners.

(2.) The first respondent herein who was the second defendant in the suit was declared ex parte on 12.7.1995. But other defendants contested the suit. It was thereafter that on 1.11.1999 defendant Nos. 3 and 4 were called absent and ex parte and a decree was passed in terms of the plaint against all the defendants. Subsequently, defendants 3 and 4 filed an application to set aside the ex parte decree. The second defendant, however, did not file any separate application, though he was made a respondent in the said application filed by defendants 3 and 4. The lower court, after considering the matter, eventually, set aside the ex parte decree. Thereupon, the first respondent herein, namely, the second defendant in the suit filed I.A. 1800 of 2001 under S.148 and 151 of the Code of Civil Procedure seeking leave of the court to file written statement. The lower court allowed the said application and the written statement was received on file. It is against that order that the present revision is filed by the plaintiffs.

(3.) It is seen from the judgment that the name of the first defendant was struck off as per Order in I.A. 949/1995 dated 7.8.1999. The second defendant being called absent, he was set ex parte and since the advocate for defendants 3 and 4 being absent and defendants 3 and 4 also being called absent and set ex parte, a common judgment was rendered in O.S. 21 of 1995 and 94 of 1995. But actually 2nd defendant was declared ex parte even prior to that as noticed earlier. Though there were four defendants in O.S. 21 of 1995 there was only one defendant in O.S. 94 of 1995. As the suit was one for permanent injunction restraining the defendants from trespassing into the plaint schedule property and from interfering in any manner with the plaintiffs peaceful possession, as per order in I.A. 1345 of 1999 dated 10.9.1999, joint trial of both the suits were ordered. As a matter of fact, plaintiffs evidence closed and DW1 was examined and it is for cross examination of DW1 that the case was posted to 1.11.1999 as disclosed in the order passed later in I.A. 1811/1999 setting aside the ex parte decree. Documents were also marked on either side. On 1.11.1999 defendants 3 and 4 were also set ex parte and a decree was passed.