BADRINARAYANRAGHUNATH SHARMA Vs. SURESH NATHAMAL GOTHAWAL

JUDGEMENT

(1.) HEARD learned counsel for the parties. Rule. Rule made returnable forthwith for hearing by mutual consent.

(2.) ORDER passed by 4th Additional District Judge, Jalgaon, on 19-3-2001 in Misc. Civil Appeal No. 99/2000 is being challenged by original plaintiff.

(3.) REGULAR Civil Suit No. 228/1996 was filed by present revision petitioner against present respondent for possession of rented premises under the provisions of Bombay Rent Act. The suit was decreed by judgment and order dated 16-3-1998 by Civil Judge (J. D. ). Bhusawal. By Civil Miscellaneous Application No. 17/1998, respondent/defendant applied under Order 9, Rule 13 of Code of Civil Procedure for setting aside the judgment and decree passed on 16-3-1998 in the said suit. Second Joint Civil Judge (J. D.) and Judicial Magistrate (F. C. ). Bhusawal, by his order dated 18-9-2000 dismissed the application observing that the said judgment and decree was passed under Order 8, Rule 5 (2) of Code of Civil Procedure and, therefore, application under Order 9, Rule 13 was not the remedy available to defendant. This order was challenged by Misc. Civil Appeal No. 99/2000 before District Judge, Jalgaon, by defendant / respondent. The miscellaneous appeal was allowed by 4th Additional District Judge, Jalgaon, by the impugned order. He held that the judgment and decree passed in RCS No. 228/1996 on 16-3-1998 was one under Order 9, Rule 6 r/w Order 17, Rule 2 of Code of Civil Procedure and consequently remedy under Order 9, Rule 13 for setting aside ex parte decree was available. Feeling that the medical certificate regarding illness of wife suffering from typhoid and jaundice from 1-3-1998 was sufficient cause for absence of defendant on 9-3-1998, the learned District Judge has allowed the application under Order 9, Rule 13 of Code of Civil Procedure thereby setting aside the judgment and decree passed on 16-3-1998 by Civil Judge (J. D.) Bhusawal, in RCS No. 228/1996.