FARRUKH JAHAN BEGAM Vs. MOHD. MAHFOOZ

JUDGEMENT

(1.) The present Misc. Appeal has been filed under Order 43 Rule (1)(i) (d) of the Code of Civil Procedure, 1908 (for brevity 'CPC') against the order dtd. 4/2/2017 passed in MJC No.431/2009 by 14th Additional District Judge, Bhopal; whereby, appellants' application under Order 9 Rule 13 CPC for setting aside ex-parte judgment and decree dtd. 28/6/2007 passed in Civil Suit No.517-A/2006 has been dismissed.

(2.) The short facts giving rise to the present appeal are that the respondent/plaintiff filed a suit for specific performance and permanent injunction in regard to land in question bearing survey No.109, details of which are mentioned in paragraph 01 of the judgment dtd. 28/6/2007 passed in original Civil Suit No.517-A/2006.

(3.) The suit was filed on the basis of a sale agreement dtd. 12/10/1999 (Exhibit-P/2) and a receipt dtd. 20/6/2002 executed by one Smt. Rais Jahan. It is averred in the plaint that the agreement was executed by Smt. Rais Jahan which was acknowledged by her legal representatives namely Iqbal Mohd., Sikander Mohd., Iftikhar Mohd., Farid Mohd., Farrukh Jahan, Mahar Parwar Jahan, Shah Parawar Jahan and Taj Parwar Jahan and given consent by making signatures over the agreement. Prior to filing of the suit, Smt. Rais Jahan had expired on 17/4/2003. The suit was filed on 18/12/2006. It is the case of the appellant that the appellant was declared ex-parte on 22/12/2006 for not marking her presence before the Court despite service of summon issued by the Civil Court. The summon has been filed alongwith the appeal as Annexure A/6 at page 46 which was issued for appearance of the appellant/defendant on 22/12/2006 before the civil court. The over leaf of the said summon endorses statement of the process server to the effect that the service has been effected to the appellant/defendant on 20/12/2006 with her signatures.