PRAHLAD SINGH Vs. NIYAZ AHMAD

JUDGEMENT

(1.) Heard learned counsel for the parties and also perused the record.

(2.) By means of this petition filed -under Article 226 of the Constitution of India, petitioners pray for Issuance of a writ, order or direction in the nature of certiarari quashing the order dated 5.11.1997 passed by respondent No. 2 dismissing the application filed by the petitioners under Order IX. Rule 7, C.P.C. and the order dated 11.11.1999 whereby the revision filed by the petitioners against the order dated 5.11.1997 has been dismissed by the Court below.

(3.) The facts of the case giving rise to the present petition in brief are that the respondent No. 1 filed a Suit No. 1245 of 1993 for permanent injunction against the petitioners and others. In the said suit 19.5.1994 was fixed for hearing. On the said date, only plaintiff-respondent appeared and the petitioner-defendant did not appear In the Court. The trial court consequently passed an order to proceed ex parte and fixed 15.7.1994 for hearing. On 15.7.1994. respondent-plaintiff produced his evidence as ex parte. Thereafter it was on 6.8.1994. an application under Order IX. Rule 7, C.P.C. was filed. Said application filed by the petitioners was objected to by the respondent No. 1 and was ultimately dismissed by the trial court by its judgment and order dated 10.5.1995. On 6.8.1994, the case was fixed for ex parte arguments. On the said date, petitioners filed two applications one for adjournment of the case and the other under Order IX, Rule 7, C.P.C. The application for adjournment of the hearing was allowed and 11.8.1994 was fixed for disposal of application under Order IX, Rule 7. C.P.C. It was on 11.8.1994. petitioners moved another application for setting aside the order dated 15.7.1994. It was on 10.5.1995, an application under Order IX, Rule 7, C.P.C. was heard and the trial court dismissed the said application holding that application filed by the petitioners was legally not maintainable. Against the order dated 10.5.1995, a revision was filed by the petitioners which was also dismissed by the Revislonal Court on 13.4.1996 and the orders passed by this trial court to proceed ex parts under Order IX, Rule 6 (1) (a). C.P.C. became final. It is stated that on 21.5.1997 an_ application moved by the plaintiff-respondent for amendment of the plaint. The said application was allowed and amendment was also incorporated in the plaint. It was on 16.7.1997 petitioners again moved a fresh application under Order IX. Rule 7 with a request to set aside the order to proceed ex parte, to permit them to file additional written statement and to decide the suit on merits. After hearing the parlies, the said application was dismissed by the trial court by its judgment and order dated 5.11.1997. The validity of the said order was challenged by the petitioners before the Revislonal Court which also upheld the validity of the order passed by the trial court and dismissed the revision on 11.11.1999, hence the present petition.