PREMVATI AND ORS. Vs. RAKESH KUMAR AND ORS.

JUDGEMENT

(1.) Present civil revision under Section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') is directed against the impugned order dated 25.09.2019 passed by Addl. Civil Judge (Senior Division), 2nd, Dehradun in Original Suit No. 229 of 2017 "Rakesh Kumar and others Vs. Premvati and others and another", whereby the recall application filed by the revisionist/applicant has been dismissed.

(2.) Brief facts of the case are that the respondent nos. 1 and 2 filed a civil suit against the revisionist/defendant for a decree of specific performance. Learned 2nd Addl. District Judge, Dehradun on 17.08.2013 passed an ex-parte judgment and decreed the suit in favour of the respondents. Thereafter, the revisionist filed an application under Order 9 Rule 13, which was allowed and the suit was directed to be on merits. Thereafter, on 15.07.2019, the suit was fixed for the evidence of revisionist/defendant. On that day, an adjournment application was moved by the counsel for the revisionist. The same was dismissed by learned trial court and the opportunity to adduce evidence of the revisionist/defendant was closed. Thereafter, on 08.08.2019, an application being paper no. 133C2 seeking recall of the order dated 15.07.2019 has been filed by learned counsel for the revisionist/defendant. In support of the said application, an affidavit of pairokar has also been filed. In the said affidavit, it is stated that on the previous occasion his counsel Mr. Arvind Sharma did not contest the case properly and when the revisionists became suspicious of the act they appointed another counsel, namely, Mr. M.K. Juyal to represent their case. It is also stated that their counsel Mr. Arvind Sharma could not prove the evidence, therefore, they could not adduce the evidence. It is also contended that the adjournment application was filed by them bonafidely and valuable rights of the revisionists/defendants have been involved in the suit, therefore, the order dated 15.07.2019 be recalled and at least one opportunity to adduce evidence be granted to them. In support of their contention, the revisionists/defendants cited case law before the trial court. The respondents/plaintiffs filed their objections against the aforesaid application stating therein that the averments made in the application paper no. 133C2 are misleading, the suit was earlier decreed vide judgment dated 17.08.2019 and execution application was filed by the plaintiffs. However, the ex-parte decree was set aside, therefore, the defendants are adopting the dilatory tactics and deliberately not adduced the evidence despite several opportunities granted to them. Therefore, the application paper no.133C2 is liable to be dismissed. Thereafter, learned trial court vide order dated 25.09.2019 observing that that the case law cited by the revisionists/defendants does not apply in the present matter. Learned trial court further observed that since the revisionist- defendant were granted several opportunities but they did not adduce the evidence and rejected the recall application filed by the revisionist and fixed the case for final arguments.

(3.) Feeling aggrieved, the revisionists/defendants filed the present revision.