ASHOK SINGH YADAV Vs. SADHNA YADAV

JUDGEMENT

(1.) THIS appeal under Order 43 Rule 1 of C.P.C., has been filed challenging the validity of order dated 15.9.2009, passed in M.J.C.No.4/2007, by the VIII Addl. District Judge, Bhopal, whereby the application made by the appellant under Order 9 Rule 13 of C.P.C., for setting aside ex-parte judgment and decree has been dismissed.

(2.) FACTS giving rise to filing of this appeal in brief are that originally the suit was filed by one Shri Mohan Singh Yadav, husband of respondent No.1 and father of respondents No. 2 to 4 against the appellant as also the respondents No. 5 to 12, for partition way back in the year 1995. It was contended that the suit property was joint Hindu family property, but the partition of the same was not done and a share was not given to the original plaintiff. The said suit was filed in his capacity as an indigent person. The suit was contested by the appellant as also the other respondents and an exhaustive written statement was filed, which was duly verified by the appellant herein. On account of non- appearance of the appellant and the other defendants, ex-parte proceedings were done and the ex-parte judgment and decree was passed. Upon making of an application, the said ex-parte judgment and decree was set aside and the suit was restored. The evidence of the parties were to be recorded. Again various opportunities were granted, but since the appellant did not appear on the date so fixed for recording of the evidence and since the counsel appearing for the appellant pleaded no instructions, again the ex-parte proceedings were done. By that time, the original plaintiff had died and respondents No. 1 to 4 were substituted as his legal representatives. After recording of evidence, the Court again passed an ex-parte judgment and decree.

(3.) THE Court below recorded the evidence of parties, reached to the conclusion that there was no justified reason for condoning the delay and, therefore, such an application of the appellant was not to be allowed. It was held that not a single document in proof of the fact that the appellant was in the judicial custody or was ailing has been produced, nor proved. THErefore, such contentions of the appellant cannot be accepted. THE application filed by the appellant was thus dismissed. This appeal is against such an order passed by the Court below.