RAKESH KUMAR JAIN Vs. ZULFKAR ALI

JUDGEMENT

(1.) Heard Sri Rahul Sripat, learned Senior Advocate assisted by Sri Ishir Sripat, learned counsel for the appellant and Sri Virendra Singh, Ms. Neha Khan and Sri Jitendra Shanker Pandey, learned counsel for the sole respondent and perused the record.

(2.) The appellant has preferred instant First Appeal From Order assailing the order dtd. 10/12/2021 passed by Additional District and Sessions Judge, Court No. 3, Muzaffar Nagar rejecting the restoration application moved by him under Order 9 Rule 13 read with 151 C.P.C., registered as Misc. Case No.17 of 2011, against the ex-parte judgment and decree dtd. 13/11/2009 passed by Additional District Judge, Court No. 5, Muzaffar Nagar in Original Suit No. 684 of 2008 (Zulfkar Ali Vs. Rakesh Kumar Jain).

(3.) Facts culled out from the record are that Zulfkar Ali (plaintiff- respondent) has filed suit dtd. 14/7/2008 for permanent prohibitory injunction against the defendant-appellant to restrain him not to interfere in the peaceful possession of the plaintiff over the property in question shown by letters ABC at the foot of the plaint and also not to dismantle the construction exists over there. The plaintiff came with the case that to secure the money borrowed from the defendant-appellant, document of understanding has been executed on 17/1/1994. At later stage, the plaintiff returned all the money as borrowed from the defendant-appellant, however, now the defendant is trying to dispossess the plaintiff from the property in question. During pendency of the suit, the plaintiff has moved an amendment application dtd. 23/3/2009 seeking additional relief of cancellation of the registered sale deed dtd. 2/2/1994 and to declare it as null and void. Aforesaid amendment application was allowed on 8/4/2009. Suit was proceeded ex-parte, vide order dtd. 11/12/2008, against the defendant-appellant. In the meantime, case was transferred to the Court of Additional District Judge, Court No. 5 on 28/1/2009 and the record was received in the transferee court on 30/1/2009. In absence of the defendant- appellant, suit was ex-parte decreed by judgment and decree dtd. 13/11/2009. When the defendant/appellant came to know this fact, he moved a restoration application dtd. 12/9/2011, being Misc. Case No.17 of 2011, under Order IX Rule 13 read with Sec. 151 C.P.C. Having considered the full knowledge of pendency of suit to the defendant-appellant through his wife, learned trial court, vide order under challenge dtd. 10/12/2021, has dismissed the restoration application.