RAMDAS Vs. ARTI

JUDGEMENT

(1.) APPLICANT has assailed order dated 23-3-2005 passed by First Civil Judge Class-II, Burhanpur in Civil Miscellaneous Case No. 12/2000 by which an application filed by respondent under Order 9 Rule 13 read with Section 151 of CPC has been allowed.

(2.) FACTS of the case are that: a suit was filed by Ramdas against respondent for declaration, which was registered as Civil Suit No. 127-A/1984. In the said suit, respondent was served and filed written statement. As the burden of proof was on the respondent, the Trial Court directed respondent to lead evidence. Several adjournments were sought and ultimately on 24-1-1989 Counsel for respondent pleaded no instructions in the case and the case proceeded exparte. Thereafter, the petitioner's evidence was recorded and an ex parte judgment and decree, was passed against respondent on 25-4-1989. Thereafter, on 16-8-2000 respondent filed an application under Order 9 Rule 13 of CPC for setting aside exparte judgment and decree dated 25-4-1989. This application was filed on the ground that the Counsel of the respondent assured her that her presence is not necessary and as and when the presence would be required, she will be informed. The respondent's son was attending the case. The respondent remained in belief that her Counsel shall inform her. On 6-8-2000 and on 8-8-2000, when the applicant obtained copies of the Khasra entriess from Patwari, she became aware that the revenue entries are against her. Thereafter, she enquired and got the knowledge that exparte judgment and decree was passed against her. On the aforesaid ground, the application was filed.

(3.) THE applicant contested the application on the ground that the respondent was represented by Shri Vikhe, Advocate who sought various adjournments from 28-10-1986 to 24-1-1989. Lastly on 24-1-1989 Shri Vikhe, Advocate pleaded no instructions from the side of respondent. On the said date, the respondent was also absent. Thereafter, the evidence of plaintiff was recorded and exparte judgment and decree was passed. It is submitted by the applicant that the respondent was informed and she was aware about the proceedings of the case.