MAHENDRA KUMAR Vs. CHHAWALI DEVI

JUDGEMENT

(1.) Heard Sri Nitin Kumar Agrawal, learned counsel for the defendant-appellants, Sri Uma Nath Pandey, learned counsel for the plaintiff-respondents and perused the material as brought on record.

(2.) The first appeal from order has been preferred by the defendant-appellant against the judgment and order dtd. 5/4/2011 passed by the Additional District Judge, Court No.8, Bulandshshr, in Misc. Case No.7 of 2008 filed under Order 41 Rule 21 of the Civil Procedure Code 1908, in Civil Appeal No.204 of 2002, Smt. Chawali Devi and others Vs. Mahendra and others, whereby the application under Order 41 Rule 21 CPC filed against the ex parte decree in the aforesaid civil appeal no.204 of 2002 has been rejected.

(3.) Contention, in brief, has been floated to the ambit that in this case, it so happened that at the initial stage, a declaratory original suit no.97 of 1983 was instituted by Smt. Chawali Devi wife of late Makkhan Lal and four others (Mahesh Kumar, Kamal Kumar, Rakesh Kumar and Yogesh Kumar) against the appellant Mahendra Kumar and five others. In the suit, notice was issued to the defendants which was duly served upon them. However, the written statement was filed by the defendants, in particular, the present appellant Mahendra Kumar (since deceased) and it was urged and claimed that some oral assurance was given by the plaintiff-respondents that it being the dispute between family members, the suit shall be withdrawn. Thereafter, defendant-appellant went to Ghaziabad and began to reside there for 13-14 years. In Ghaziabad, the appellant suffered from many ailments / diseases. He came back to Bulandshahr on 13/2/2008 when Subhash and Rakesh told him that the cinema hall is going to be sold by the respondents - Mahesh Kumar, Kamal Kumar, Rakesh Kumar and Yogesh Kumar as they have won litigation. Thereupon, the appellant being anxious contacted his counsel in Bulandshahr and enquired about the original suit no.97 of 1983 whereupon it transpired that the original suit was dismissed on 18/9/2002 against which an appeal was preferred by the aforesaid plaintiff-respondents which appeal was numbered 204 of 2002.