DIWAN SINGH DIYOLIYA Vs. MADAN SINGH

JUDGEMENT

(1.) This writ petition has been filed under Article 227 of the Constitution of India, whereby the petitioners have to put to challenge the judgment and order dtd. 22/6/2019, passed by learned Ist Additional District Judge, Nainital, in Civil Appeal No.33 of 20218, Madan Singh Vs. Deewan Singh Diyoliya and another, and consequently the appeal filed by the defendant/appellant may be dismissed.

(2.) The brief facts of the case are that the petitioners are Bhumidhar of agricultural land recorded in revenue records as Khata No.31 ad-measuring 28 Nali 14 Muthi, and Khata No.38 ad-measuring 29 Nali 05 Muthi, situated in Village Anouthi, Patti-Gahna, Tehsil and District Nainital. They have been in long and settled possession of the aforesaid land. The respondent, along with one Mr. Nathu Singh, attempted to forcibly take possession of the said land despite having no lawful claim. Consequently, the petitioners instituted Civil Suit No.29 of 2009 before the court of the learned Civil Judge (J.D.), Nainital, seeking permanent injunction. The suit proceeded, and owing to non-appearance and lack of due diligence by the defendants, it was decreed ex parte on 25/6/2013. Thereafter, defendant no.2 filed an application under Order IX Rule 13 of C.P.C. along with Misc. Case No.06 of 2014, seeking to set aside the ex parte decree, on the sole ground that the counsel engaged by him had died during pendency of the suit and he was not informed of such demise. The petitioners filed objections, stating that the defendants were fully aware of the death of their counsel as well as the proceedings of the suit, and despite that, they continued to defend the case through other engaged counsel. The trial court considered the objections and rejected the said application along with the delay condonation plea filed under Sec. 5 of the Limitation Act vide order dtd. 12/3/2015. Aggrieved thereby, defendant no.1 preferred Civil Revision No.15 of 2015, which was allowed by the Revisional Court vide order dtd. 9/2/2016, remitting the matter back to the trial court for fresh consideration. After remand, the trial court heard the matter and rejected application No.4C again on 12/8/2016 with costs of 1,000/-. A subsequent revision petition filed by the petitioners was also rejected on 12/3/2018.

(3.) The petitioners then filed Writ Petition (M/S) No. 1058 of 2018 before this Court, which is pending. Meanwhile, the defendants again filed application No. 6C under Order IX Rule 13 of C.P.C., which was rejected by the trial court on 28/6/2018, holding that the defendants were fully aware of the proceedings and had deliberately abstained from contesting the suit. However, in appeal (Civil Appeal No.33 of 2018), the learned Ist Additional District Judge, Nainital, allowed the appeal vide order dtd. 22/6/2019, condoning the delay and setting aside the ex parte decree. This appellate order is now challenged before this Court.