BABULAL JAIN Vs. RASHMI RASTOGI

JUDGEMENT

(1.) This petition under Section 115 of CPc has been preferred by the petitioner/tenant against the order dated 16/1/2015 passed by Third Additional District Judge, Gwalior in Miscellaneous Civil Appeal No. 8/2014; confirming the order dated 23/12/2011 passed by Fifth Civil Judge, Class-II, Gwalior in Miscellaneous Civil Case No. 3/2011, whereby, the application preferred by the petitioner/tenant under Order IX Rule 13 CPC has been rejected.

(2.) Precisely stated facts of the case are that in year 1991 original plaintiff Sitaram filed a civil suit vide Civil Suit No. 37-A/1991 for restoration of possession and mesne profits against the petitioner/tenant in respect of land/plot in questions. Petitioner filed the written statement and denied the claim made by the plaintiff. As per the submission, due to some reasons petitioner could not attend the suit proceedings, therefore, trial Court proceeded ex parte against the petitioner and suit of the plaintiff was decreed vide judgment and decree dated 18/1/1993 against the petitioner. No sooner the facts came to the knowledge of the petitioner about passing of ex parte judgment and decree, he immediately filed an application under Order IX Rule 13 read with Section 151 CPC before the trial Court which was registered as case No. 5/1993. Said application was listed for evidence of petitioner but on same day application was dismissed for want of prosecution due to absence of petitioner and his counsel vide order dated 17/8/1994. Against the order dated 17/8/1994, petitioner filed an application under order IX Rule 9 read with Section 151 of CPC for restoration of proceedings of application under Order IX Rule 13 CPC which was dismissed vide order dated 20 th November, 1997. It appears from the pleadings that thereafter, petitioner filed a revision petition bearing No.C.R.NO. 16/1997 before this Court and vide order dated 18/9/1998, said revision was allowed and the proceedings under Order IX Rule 13 CPC were restored and trial Court was directed to consider and decide the application after affording opportunity of hearing/ lead evidence to both the parties. It further appears that thereafter, trial Court vidce order dated 23/12/2011, dismissed the petitioner's application udner Order IX Rule 13 read with Section 151 of CPC by holding that the said application is barred by limitation.

(3.) Against the order dated 23/12/2011, petitioner filed a miscellaneous civil appeal before the appellate court alongwith application for stay over the effect and operation of ex parte judgment and decree dated 18/1/1993, earlier passed by the trial Court. Said application was allowed by the appellate Court vide order dated 28/8/2012. During the pendency of said appeal, original plaintiff expired and his LRs were brought on record.