GAJRAJ SINGH Vs. HEERA SINGH

JUDGEMENT

(1.) Heard finally with the consent of the parties.

(2.) This civil revision has been filed by the petitioner under Sec. 115 of Code of Civil Procedure, 1908 against the order dtd. 8/1/2013, passed by the learned IInd Additional District Judge, Khargone, District-Khargone (M.P.) in Miscellaneous Appeal No.35/2012, whereby the learned Judge of the District Appellate Court has reversed the order dtd. 7/9/2012 passed in MJC No.6/2012 by IIIrd Civil Judge Class-II whereby, the application filed by the defendant Nos.3 and 4 under Order 9 Rule 13 of CPC was rejected. Through the impugned order dtd. 8/1/2013, the District Appellate Court has allowed the appeal and remanded the matter back to the Trial Court by restoring the civil suit.

(3.) In brief, the fact of the case are that the civil suit was filed by the petitioner/plaintiff for declaration, possession and mesne profit against the respondents/defendants in respect of land situated at Khasra No.36 at Village- Amba, District- Khargone (M.P.). In the aforesaid suit, the notices were issued to the defendants, however, only the defendant Nos.3 and 4/ the respondent Nos. 1 and 2 of the revision filed the written statement and contested the matter whereas, the defendant Nos.1 and 2, who are the respondent Nos.3 & 4 in the revision, remained ex-parte. The decree was passed on 5/5/2011, and put in execution, and again, when the notices were served on the defendant Nos.3 and 4, they came to know about exparte decree and filed an application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree, which was rejected by the Trial Court vide order dtd. 7/9/2012, holding that the defendant Nos.3 and 4 were properly served and despite service of notice, they refused to mark their appearance before the Court. Thus, the application to set aside the ex-parte order was rejected against which the defendant Nos.3 and 4 preferred the appeal No.35/2012 before the IInd Additional District Judge, Khargone, who has reversed the order passed by the Trial Court, holding that the defendant Nos.3 and 4 were not properly served.