ANEES Vs. RAJKUMAR

JUDGEMENT

(1.) This is defendant's petition, under Article 227 of the Constitution of India, against the order dated 13.04.2018 passed by learned 1st Additional District Judge, Roorkee, District Haridwar in Civil Revision No. 09 of 2017.

(2.) Rajkumar, who is respondent herein, filed a suit for cancellation of sale deed against the petitioner, which was registered as Original Suit No. 13 of 2014 in the court of Civil Judge (J.D.), Roorkee, District Haridwar. Since the summons could not be served upon petitioner, therefore, learned trial court ordered for substituted service upon the petitioner (defendant in the suit) by publication in a newspaper. Pursuant to the said direction, publication was made in a local newspaper known as "Dainik Hawk". Since petitioner / defendant did not put in appearance before the trial court, even after publication of notice in newspaper, therefore, learned trial court proceeded ex-parte and ultimately decreed the suit exparte on 11.012014 by cancelling the sale deed dated 26.08.2013.

(3.) Petitioner, after about 5? months, filed an application under Order 9 Rule 13 of C.P.C. along with application under Section 5 of the Limitation Act. Both these applications were allowed by learned trial court vide order dated 22.12.2016. Sri Rajkumar (plaintiff) challenged the said order passed by learned trial court by filing an appeal before learned 1st Additional District Judge, Roorkee, District Haridwar, which was later converted into revision petition and was registered as Civil Revision No. 09 of 2017. The said revision was allowed by learned 1st Additional District Judge, Roorkee, District Haridwar vide order dated 104.2018 and the order passed by learned trial court on 22.12.2016 was set aside by holding that the defendant has not given day-to-day explanation for the delay caused in filing application for setting aside ex-parte decree and further that no documentary evidence was filed to prove that he had applied for inspection of the record of the case.