IRFANA BEGUM Vs. RAJ KUMAR AGARWAL

JUDGEMENT

(1.) This appeal is from the order dated 1st May. 1998, passed in Misc. Case No. 28/74 of 1995 by the learned VIIth ACMM, Kanpur Nagar, by which the application for setting aside the decree dated 17.1.1995 in Original Suit No. 1247 of 1992 has been rejected.

(2.) The facts in short giving rise to this appeal are that plaintiff-respondent No. 1. Raj Kumar Agarwal filed Original Suit No. 1247 of 1992 for a decree of mandatory injunction for specific performance (by defendant-appellant and defendant-respondent Nos. 2 to 5) of agreement dated 25.1.1988 in respect of premises No. 7/209 measuring 1668 sq. yards situated in Swaroop Nagar, Kanpur Nagar and further to execute the sale deed in favour of plaintiff-respondent No. 1 and deliver possession of the premises in dispute to him and in case of their failure, the Court may execute the sale deed in his favour. It was also prayed that a declaration may be made to the effect that any sale deed in respect of premises in dispute executed by the defendant-respondent Nos. 2 to 5 in favour of defendant-appellant is a nullity and is not binding on plaintiff-respondent No. 1. In this suit, summons were issued for service on defendants fixing date for filing written statement. Thereafter within period between 7.5.1993 to 1.12.1994, several opportunities numbering more than a dozen were given to file written statement but defendant failed to file any written statement. On 1.12.1994 an application No. 92C was filed by plaintiff-respondent No. 1 for Invoking the provisions of Order VIII, Rule 10, C.P.C. to decree the suit in absence of written statement. Against this application, an objection (93C) was filed by the defendant-appellant that written statement has been filed on her behalf. On 17.1.1995 aforesaid application and objection were heard by the Court below. It was found that defendant-appellant has filed no written statement and the allegations made in the objection were misleading. The Court, consequently, proceeded under Order VIII, Rule 10, C.P.C. and decreed the suit with cost in absence of written statement. The defendant-appellant on 16.2.1995 filed an application under Order IX, Rule 13, C.P.C. for setting aside the decree dated 17.1.1995 treating the same an ex parte decree against her. The application was rejected as not maintainable under Order IX, Rule 13. C.P.C. by the impugned order dated 1st May, 1998 aggrieved by which the present appeal has been filed in this Court.

(3.) On 18.5.1999 the learned counsel for the parties agreed that in this appeal question of law involved is regarding the maintainability of the application under Order IX. Rule 13, C.P.C. filed for setting aside the decree passed applying the provision of Order VIII, Rule 10, C.P.C. and the appeal may be finally decided at the admission Stage itself on the basis of the aforesaid question of law. Shri Z.M. Naiyer along with Shri A. N. Sinha and Shri Sandeep Saxena, learned counsel for the appellant and Shri Janardan Sahai, learned counsel appearing for plaintiff-respondent No. 1 have been heard.