RAJ KUMAR AGRAWAL Vs. SURESH CHANDRA JAIN

JUDGEMENT

(1.) The respondent/landlord filed an application under Section 21 (1)(a) of Act No. 13 of 1972 for release of the shop in dispute. The application was allowed ex-parte on 12 December 2011 by the Prescribed Authority. Aggrieved, petitioner made an application under Order 9 Rule 13 of Code of Civil Procedure stating that he could not appear on the date of hearing for the reason that he was trying to settle the dispute outside the Court with the respondent/landlord. The settlement could not be reached, therefore, he did not appear on the date fixed for hearing. The Authority by order dated 10 April 2012 rejected the application noting that the application was not maintainable as the release application was decided on merits. Aggrieved, by the order dated 10 April 2012 rejecting the application under Rule 13 of Order 9 and the decree, the petitioner has approached this Court in writ jurisdiction.

(2.) The submission of the learned counsel for the petitioner is that on 25 October 2011, the evidence of the petitioner was closed, however, the Court permitted the petitioner for filing the evidence on 18 November 2011. On 18 November 2011 the petitioner appeared, but, the date was adjourned for 22 November 2011. On the said date the petitioner did not appear taking a plea that he was trying to settle the matter out side the Court. On 22 November 2011 the case was directed to come up for argument on 1 December 2011, finally the release application was decided on merits on 12 December 2011. The Court below upon noting the aforementioned dates and the conduct of the petitioner rejected the application to recall the judgment and decree holding that since the application was decided on merits, the application under Order 9 Rule 13 is not maintainable.

(3.) It is contended on behalf of the petitioner that the petitioner could not appear after 18.11.2011 on a bona fide belief that a compromise would be effected between the parties, therefore, the petitioner may be given an opportunity and the matter be decided upon rehearing the petitioner.