RAJESH DUTT SINGH Vs. HEERA WATI SINGH

JUDGEMENT

(1.) Heard Shri Anurag Shukla, learned counsel for the appellant and Shri Ganga Prasad Srivastava along with Shri Manoj Nigam, learned counsel for the respondent.

(2.) The instant first appeal from order has been preferred under Order 43 Rule 1(d) read with Section 104 of CPC against the order dated 29.08.1990 passed in Misc. Case No.35/1989 whereby the application purporting to be under Order 9 Rule 13 CPC moved on behalf of the appellant was rejected by the court below.

(3.) Briefly, the facts giving rise to the above appeal are as under:- The respondent No.1 Smt. Hirawati Singh instituted a suit for declaration in the Court of Civil Judge, Gonda. Since, the aforesaid suit was accompanied by an application under Order 33 Rule 1 CPC, accordingly, initially the suit was registered as a Misc. Case bearing No.29/1986. In the aforesaid misc. case, notices were issued to the D.G.C. (Civil) and the present appellant, who was the defendant in the suit and he contested the proceedings by filing his objections. However, on 01.09.1988, the application of Smt. Hirawati Singh was allowed by the Civil Judge, Gonda and she was granted permission to contest the suit as an indigent person. By the same order i.e. 01.09.1988, the Civil Judge, Gonda directed the suit to be registered as a Regular Suit and the file be sent to the Court of Additional District Judge, Court No.2, Gonda, who is dealing with the family court's matters and further directed the parties to appear in the Court of II A.D.J., Gonda on 15.09.1988. The file was received in the office of the II A.D.J., Gonda and on 15.09.1988, the said court found that since the defendant had already appeared when the matter was being contested on the application to sue as an indigent person, therefore, it observed that no fresh notice be sent to the defendant, however, it fixed the matter for 15.10.1988 for filing of the written statement and on 22.10.1988 for issues. When none appeared for the defendant, the Court directed the matter to proceed ex-parte and thereafter the suit finally came to be decided ex-parte by means of the judgment and decree dated 28.02.1989.