PREM KUMAR Vs. A D J

JUDGEMENT

(1.) This writ petition has been filed by the defendant of the suit No. 227 of 1989: Smt. Mundra Devi v. Prem Kumari for quashing of the order dated 24th of August, 1995 passed in the civil revision No. 98 of 1993: Smt. Mundra Devi v. Prem Kumari wherein the revisional court has allowed the said revision and rejected the application filed by the petitioner under Order 9 Rule 13 of C.P.C. The facts of the case may be noticed in brief. The suit No. 227 of 1989 was filed by Smt. Mundra Devi claiming herself to be the owner of the disputed land. She pleaded that she has purchased the disputed land through a sale deed dated 5th of May, 1989 and claimed relief for permanent injunction restraining the defendant petitioner not to interfere in her possession over the disputed land. Summons were issued fixing 16th of August, 1990 for filing the written statement. But no written statement was filed on that date. An application for adjournment was filed by the petitioner which was rejected and 18th of August, 1990 was the next date fixed. On that date, evidence of the plaintiff was recorded. The defendant did not appear on the pretext that there was lawyers' strike.

(2.) In the meantime, on 24th of August, 1990 an application to recall the order dated 18th of August, 1990 was filed which was rejected on 1st of September, 1990. The suit was ultimately decreed by the judgement dated 7th of September, 1990. To set aside the said decree an application purporting under Order 9 Rule 13 C.P.C was filed on 10th of September, 1990 stating that the petitioner could not appear on the date fixed as he was confined to bed. The said cause was found sufficient by the trial court and the trial court by its order dated 22.10.1993 set aside the exparte judgment and order dated 7th of September, 1990, and restored the original suit No. 287 of 1989 to its original number subject to payment of cost of Rs. 150/-. The matter was carried in revision No. 98 of 1993 by Smt. Mundra Devi which came up for consideration before the court below. The court below was of the view that in the present case the suit should have been decreed on 18th of August, 1990 under Order 8 Rule 10 C.P.C and the court below was not justified in restoring the suit to its original number. The revisional court was of the view that the application under Order 9 Rule 13 C.P.C is not maintainable. It may be placed on record that the court below has not examined the question about sufficiency of the cause shown by the petitioner. The said order is under challenge in the present writ petition.

(3.) Heard Sri Swapnil Kumar, advocate, learned Counsel for the petitioner and Sri M.N. Singh, learned Counsel for the contesting respondent. The learned Counsel for the petitioner submits that on the facts of the present case, the application under Order 9 Rule 13 C.P.C was maintainable. Reliance was placed by him on a judgment of this Court in R. Para 8 of the said judgment is reproduced below: