BHUSHAN RAJ Vs. SUKHBIR SINGH

JUDGEMENT

(1.) This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondents holding that the respondents were owners in possession of the land in dispute and permanently restraining the appellants from interfering in their possession. The undisputed facts are that the suit was originally dismissed in default and was restored after three years without notice to the appellants. After restoration, as per the allegations of the appellants, notice was issued to them but they were never served. However, some Counsel appeared for them on one date and thereafter stopped appearing. Therefore, the appellants were proceeded against ex parte and ultimately, the suit was decreed.

(2.) In appeal, the appellants took the plea that they had never authorised this Counsel who had appeared on one occasion and that they have never been served in the restored suit. As mentioned above, their appeal was dismissed and consequently, they are before this Court. The following questions have been proposed:

(3.) In respect of Question No. l, Learned Counsel has argued that no doubt, it was open to the learned Lower Appellate Court, after examining the record, to hold that the plea of the appellants that they were never served or that they have never engaged the Counsel was unsubstantiated. In that case, he may not have had any case. However, learned Lower Appellate Court was wrong to hold that such a plea is not available in appeal filed under Section 96 CPC and that the only remedy available to the appellants,' in such a situation was to file an application under Order 9 Rule 13 CPC. In this regard, Learned Counsel has drawn my attention to the sub-Section 2 of Section 96 CPC under which an appeal may lie from an original decree passed ex parte.