JAGDAMBA PRASAD Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Heard.

(2.) The petitioner alongwith three others purchased a piece of land as well as the dilapidated house situated in Mohalla Shahzadpur, Akbarpur, District Ambedkar Nagar through registered Sale Deed dated 5.12.1984 from Smt. Ram Dulari. The father of opposite party nos.3 to 5 filed a Civil Suit No. 820 of 1984 for permanent injunction against the petitioner and four others on 11.12.1984 before Civil Judge (JD) claiming the right and title over the aforesaid property purchased by the petitioner. The learned trial Court decreed the Suit No. 820/84 ex parte in favour of plaintiffs only relying upon the affidavits contained in paper nos. 44C-2, 45C-2 and 46C-2 vide judgment and order dated 28.4.1993. When the petitioner came to know the aforesaid ex parte judgment and order dated 28.4.1993, he immediately moved a Misc. Application No. 24/93 under Order 9 Rule 13 read with Section 151 CPC before the trial Court within time, i.e. on 27.5.1993 for recall of the order and decide the Suit on merit. This application was rejected vide judgment and order dated 28.2.1988. Thereafter, the petitioner filed an Misc. Appeal No. 69 of 1998 which too was rejected by the order dated 21.2.2004.

(3.) Counsel for the petitioner says that in the affidavit filed in the application for recall of the order dated 28.4.1993, the petitioner has explained the reasons for absence on the date fixed but the court below in a very harsh manner rejected the application though in number of cases it has been decided that the case should be decided on merits rather than on technicalities.