SHEIKH IBRAHIM Vs. SHAMEEM BEGUM

JUDGEMENT

(1.) THE non-applicant as plaintiff filed Civil Suit No. 42-A/96 in the Court of First Civil Judge, Class-II, Jabalpur for ejectment of the present applicant. The said Civil suit was decreed ex-parte. Thereafter, the judgment-debtor, the petitioner herein, filed an application under Order 9 Rule 13 of the Code of Civil Procedure (in short the CPC) for setting aside the ex-parte judgment and decree which formed the subject-matter of MJC No. 2/99. The Court below rejected the said application as there was absence of sufficient cause. Feeling aggrieved the present petitioner filed Misc. Civil Appeal No. 22/99 which met with similar fate. Hence, this revision.

(2.) I would have addressed myself to the merits of the civil revision but Mr. Gupta, learned counsel for the decree-holder/non-applicant pointed out that against the judgment and decree passed by the First Civil Judge, Class-II, Jabalpur a regular appeal has been filed under Section 96 (2) of the Code forming the subject-matter of Civil Appeal No. 78-A/99 and the said appeal has been dismissed on 6-1-2000 on the ground of limitation. Submission of Mr. Gupta is that the Explanation of Order 9 Rule 13 of the Code gets attracted in the facts and circumstances of the case. Mr. Kohli, learned counsel for the petitioner, per contra, has contended that the dismissal of the appeal will not attract the mischief of the Explanation inasmuch as the same was dismissed on the ground of limitation and more so, second appeal has already been preferred by the judgment-debtor.

(3.) AT this juncture, it would be useful to refer Explanation of Order 9 Rule 13 of the Code. It read as under :