BHADRESHKUMAR KANTILAL THAKKAR Vs. MERUBEN

JUDGEMENT

(1.) Rule. Learned Counsel, Mr. Girish K. Patel for the Respondent Nos. 2 and 3 and learned Counsel, Mr. Kishor Prajapati for learned Counsel, Mr. Mehul H. Rathod for the respondent No. 4 waive service of notice of rule.

(2.) The present petition has been filed by the petitioner under Article 227 of the Constitution of India as well as under the provisions of the Civil Procedure Code, 1908 for the prayer that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the 4th Additional Senior Civil Judge, Deesa, Banaskantha below application, Exh.43 dated 02.05.2011 as well as order produced at Annexure-C in Special Civil Suit No. 10 of 2010 dated 02.04.2011 on the grounds set out in the memo of petition.

(3.) The facts of the case briefly stated are that the petitioner is the original defendant No. 4, the respondent No. 1 is the original plaintiff and the Respondent Nos. 2 to 4 are the original defendant Nos. 1 to 3. Suit was filed by the respondent No. 1-original plaintiff for permanent injunction and declaration regarding the land bearing Survey No. 504 situated at Juna Deesa. However, the petitioner herein-original defendant No. 4 was not initially made party and subsequently he was joined. However, as he was suffering from Pneumonia, he could not remain present and the matter was proceeded ex-parte in absence of the petitioner- original defendant No. 4. Therefore, an application dated 26.04.2011 produced at Annexure-C was filed by the petitioner-original defendant No. 4 under Order 9, Rule 13, which came to be rejected and the present petitioner is, therefore, filed.