MEENA Vs. SUNIL SINGHAI

JUDGEMENT

(1.) HEARD on admission.

(2.) THE plaintiff/respondent No. 1 filed a suit for recovery of possession of a plot and a house. The suit was decree vide judgment dated 5.4.14. On behalf of present appellant/defendant No. 3, Advocate filed his power and he was present on 29.7.09. Thereafter on 4.11.09, the court proceeded ex -parte against the present appellant. Then, the counsel filed an application before the trial court for setting aside the ex -parte proceedings under Order 9 rule 7 of the CPC. The aforesaid application was dismissed by the court on 11.3.14. Thereafter, the judgment and decree was passed by the court. On 2.5.14, the present appellant/defendant No. 3 filed the application under Order 9 rule 13 of the CPC through power of attorney holder Smt. Krishna Arya. She pleaded that she was residing at United States and summon of the suit was never served on her, hence the ex -parte proceedings against the appellant was illegal.

(3.) LEARNED counsel appearing on behalf of the appellant has submitted that the trial court has committed an error of law in dismissing the application filed by the appellant under Order 9 rule 13 of the CPC. The notice of the suit was never served upon the appellant, hence the ex -parte decree against the appellant was illegal. It is further contended by the learned counsel that it was obligatory on the part of the court to issue SPC to the appellant when the counsel pleaded no instructions on behalf of the present appellant. He further contended that the substantial injustice has been caused to the appellant due to ex -parte proceedings, hence the appeal deserves to be allowed.