SANT RAM Vs. 1ST A.D.J.

JUDGEMENT

(1.) Heard Sri Tripathi B.G. Bhai, learned Counsel for the petitioners and Sri P.N. Singh, learned Counsel for the private-respondents. Counter and rejoinder-affidavits have been exchanged between the parties.

(2.) This writ petition is directed against the order dated 12.3.1999 passed in Misc. Civil Appeal No. 45 of 1994 by the First Additional District Judge, Siddharth Nagar, whereby the Appellate Court has allowed an application under Order IX, Rule 13, CPC filed by the defendant-respondent in Original Suit No. 145 of 1992 and remitted the matter back to the Trial Court to decide the suit after hearing the parties.

(3.) According to Sri Tripathi B.G. Bhai, the Trial Court by the order dated 26.2.1993 had decreed the suit of the petitioner under Order VIII, Rule 10, CPC for cancellation of the sale-deed dated 28.5.1987. Against the said order the defendant-respondent filed an application under Order IX, Rule 13, CPC for recall of the order but the Trial Court vide its order dated 28.9.1994 rejected the application. According to Sri Tripathi B.G. Bhai, the order of the Trial Court rejecting the application under Order IX, Rule 13 CPC is quite clear where it has been held that the Original Suit No. 145 of 1992 had proceeded under Order VIII, Rule 10, CPC for failure of the defendant-respondent of filing written statement in spite of several opportunities and, therefore, it could not be held that the judgment dated 26.2.1993 was an ex parte judgment. He states that the defendant-respondent had filed an application for adjournment being application No. 17-Ga which was rejected and after hearing the plaintiff the Trial Court had passed the judgment.