BANSHILAL Vs. SANJAY AND ANOTHER

JUDGEMENT

(1.) Aggrieved by order dated 10.5.2013 passed by the Additional District Judge, Mahidpur, District Ujjain in C.M. A.No.13/2013 dismissing the appeal filed by the petitioner to set aside order dated 14.10.2010 passed by the Civil Judge, Class-I, Mahidpur, Ujjain in M.J.C. No. 15/2009 dismissing the application filed by the petitioner under Order 9 rule 13 of CPC to set aside the ex parte judgment and decree dated 12.12.2008 passed in COS No. 47-A/2008 by Civil Judge, Class-I, Mahidpur has been dismissed and also with dismissal of the petition to review dated 21.9.2015 passed in M.J.C. No.29/2013 to review the order dated 10.5.2013 passed in CMA No. 13/2013 by Additional District Judge, Mahidpur, District Ujjain, the petitioner has preferred the present petition.

(2.) Brief facts of the case are that the respondent No.1 filed a Civil Suit No.COS No.47-A/2008 for specific performance stating that the petitioner was agreed to sale the suit land bearing Survey No.0.052 hectare situated at Village Gogapur, Tahsil Mahidpur District, Ujjain to him. The petitioner appeared before the Court and contested the suit. He denied execution of any such sale agreement as alleged by the plaintiff (respondent No.1 herein) and submitted that he has taken a loan by mortgaging the suit land. He repaid the loan with interest according to the petitioner, he was diligently prosecuting the case. He filed his written statement and after recording of evidence of the plaintiff he also filed his affidavit of examination-in-chief. But thereafter, unfortunately his son met with an accident. His condition was serious, therefore the petitioner was extremely busy for his treatment for the next two years. He had to shift Ratlam due to compelling family circumstances. He could not attend the trial and also did not receive any information from the lawyer. The Court declared him ex parte and decreed the suit vide judgment and decree dated 12.12.2008.

(3.) The petitioner approached the Court to set aside the ex parte decree by filing an application under Order 9 rule 13 CPC which was registered as MJC No. 15/2009 and was dismissed vide order dated 14.10.2010. The petitioner preferred Miscellaneous Appeal No.13/2013, which also met with the same fate. The petitioner again tried to convince the Court by filing a Review Petition No.MJC 29/2013 but the Court declined to interfere in the earlier order and dismissed the review petition vide order dated 21.9.2015. Frustrated with both the orders of the Additional District Judge dated 10.5.2013 (CMA13/13) and 21.9.2015 (MJC 29/13) dismissing the first appeal and the review petition, the petitioner has come before this Court by filing the present petition.