ASHOK KUMAR Vs. PRAMOD KUMAR

JUDGEMENT

(1.) Petitioners have invoked the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking quashing of the order dtd. 3/5/2019 passed by 8th Additional District Judge, Dehradun in Appeal no. 102 of 2012 "Ashok Kumar Vs. Pramod Kumar and others".

(2.) Brief facts of the case are that respondents/plaintiffs filed Original Suit No. 904 of 1998 "Pramod Kumar and another Vs. Ashok Kumar" in the Court of Civil Judge (Senior Division), Dehradun against the petitioners/defendants seeking possession and damages for illegal use and occupation of the property. Petitioners appeared before the court below and contested the suit and filed their written statements, denying the plaint averments.

(3.) The trial court fixed 25/2/2005 for framing of the issues. The defendant did not appear on the date fixed. The trial court vide order dtd. 25/2/2006 proceeded ex-parte against the defendants, thereafter, the plaintiff adduced their evidence. On 23/12/2006, petitioners/defendants moved an application under Order 9 Rule 13 C.P.C. for setting aside the ex-parte judgment and decree. A delay condonation application under Sec. 5 of Limitation Act was filed stating that they did not appear before the trial court on the date fixed as their counsel had given assurance to them that he will properly look after the case. It is also stated that on 12/12/2006, they came to know that the suit has been decreed ex-parte against them by judgment and decree dtd. 25/2/2006, whereafter they immediately filed the aforesaid application. In the delay condonation application, it is stated that though the petitioners were not aware about the ex-parte judgment and decree, but when they came to know about the ex-parte judgment and decree they filed an application for setting aside the said ex-parte judgment and decree.