SUNIL KUMAR Vs. VINOD KUMAR

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India has been filed by the petitioner, Sunil Kumar, resident of Village Lalpur, Patti Sukhri, Tehsil Kotdwar, District Pauri Garhwal, challenging the legality and correctness of the orders dtd. 7/1/2020 and 5/2/2020 passed by the learned Civil Judge (Junior Division), Kotdwar, and the learned Additional District Judge, Kotdwar, respectively. The impugned orders reject the petitioner's application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908, along with the accompanying delay condonation application seeking recall of an ex parte judgment and decree dtd. 16/7/2018 passed in Original Suit No. 1 of 2018, titled Vinod Kumar vs. Sunil Kumar, wherein a decree of permanent injunction and demolition was granted in favour of the respondent.

(2.) The petitioner, Sunil Kumar, and the respondent, Vinod Kumar, are real brothers residing at Village Lalpur, Patti Sukhri, Tehsil Kotdwar, District Pauri Garhwal. A civil dispute arose between them when the respondent filed Original Suit No. 1 of 2018 before the Civil Judge (Junior Division), Kotdwar, seeking permanent injunction and demolition against the petitioner on the ground that the petitioner had encroached upon a common approach pathway allegedly used by the respondent to access his property. It was alleged that the petitioner had erected a gate and wall on the said joint passageway.

(3.) A vakalatnama on behalf of the petitioner was filed on 13/3/2018. However, according to the petitioner, his counsel had informed him that his personal appearance was not necessary as the counsel would be filing the objections/written statement. The petitioner claims he was simultaneously undergoing medical treatment and had to travel to Dehradun for his son's higher education, which prevented his personal appearance in court. Consequently, the civil suit proceeded ex parte, culminating in a judgment dtd. 16/7/2018 against the petitioner, followed by a decree dtd. 19/7/2018.