SAI ENTERPRISES Vs. SURENDRA SINGH YADAV AND ANOTHER

JUDGEMENT

(1.) Petitioner has filed this Civil Revision being aggrieved by the order dated 26.08.2016 passed by 5th Additional District Judge, Gwalior, in Miscellaneous Civil Appeal No.46/2014 confirming the order dated 30.08.2014 passed by 7th Civil Judge Class-II, Gwalior, in M.J.C. No.23- A/2013, whereby learned Trial Court had dismissed the application under Order 9, Rule 13 of C.P.C., which was moved by the present revision petitioner.

(2.) It is the case of the petitioner that initially he was not impleaded as a party in the suit, which was filed by respondent No.1 in the present Civil Revision namely-Surendra Singh Yadav. Thereafter, he had moved an application under Order 1, Rule 10 of C.P.C. to implead him as a party and without issuing any notice of such application, same was allowed and present petitioner was impleaded as a party. Thereafter, summons were never served on the petitioner and therefore, he could not appear before the Trial Court and ex-parte decree was passed against him. It is his contention that thereafter, as soon as he came to know about the said judgment and decree, he had filed an application for setting-aside the ex-parte proceedings by way of filing an application under Order 9, Rule 13 , but that has been rejected by the Trial Court so also Miscellaneous Appeal filed by him against such rejection, has been dismissed by the Court of 5th Additional District Judge, therefore, petitioner has filed this Civil Revision.

(3.) Learned counsel for the petitioner further submitted that plaintiff/ respondent-Surendra Singh Yadav never filed any reply to application under Order 9, Rule 13 of C.P.C. nor filed any affidavit in lieu of oral evidence in rebuttal of the contentions put-forth by the present petitioner and therefore, in the light of the law laid-down by this Court in the case of Kher Singh Vs. Phoolchand as reported in 1981 JLJ SN 5, the Court should have allowed the application under Order 9, Rule 13 and should have permitted the petitioner to participate in the proceedings from the stage where from he was proceeded ex-parte. He has also placed reliance on the judgment of the Supreme Court in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others as reported in (2002) 5 SCC 377, wherein it has been held that if the service is not proper, then ex-parte proceedings drawn against such person needs to be set-aside.