PIRTHI Vs. SURTA RAM

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 3.9.2003 passed by learned first appellate Court dismissing the appeal filed by petitioner-defendant against order dated 31.5.2003 passed by learned trial Court vide which application filed by petitioner for setting aside ex parte order and ex parte judgment and decree dated 15.3.2002 under Order IX Rule 13 of the Code of Civil Procedure (for short 'the Code') was dismissed.

(2.) I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned courts below.

(3.) Facts relevant for the decision of present revision petition are that a suit for possession by way of specific performance of agreement to sell dated 25.4.1998 was filed by respondent-plaintiff against petitioner-defendant regarding the land measuring 16 kanals, as fully detailed and described in para No.1 of the plaint, vide jamabandi for the year 1993-94, situated within the revenue estate of village Seekri, Tehsil Nilokheri, District Karnal. The suit was filed on 12.10.1999. On receiving notice of the suit petitioner-defendant appeared and contested the suit denying the very execution of the agreement to sell. Rather, the plea has been taken that respondent-plaintiff in collusion with M/s Surat Singh, Commission Agent, Nai Anaj Mandi, Indri and Shri Rajhtder Singh son of Zile Singh, had forged the agreement as petitioner used to sell his crop with aforesaid commission agent and he stopped selling the same in the year 1995, Parte plea has been taken that thumb impression of petitioner were obtained an some blank papers by respondent-plaintiff on the pretext of preparing an authority letter for receiving payment of the produce from the parties. The said commission agent also filed a suit for recovery of the amount, which is also pending. Hence, petitioner denied execution of agreement to sell and having received earnest money. Suit was being contested by petitioner-defendant. However, the suit was pending before learned Civil Judge, Junior Division, Karnal, who was not having the pecuniary jurisdiction to try the same. Hence, an application was moved before learned District Judge, Karnal, for transferring the suit from the Court of learned Civil Judge, Junior Division, Karnal, to the Court of learned Civil Judge, Senior Division, Karnal, who was competent to decide the same. It may be mentioned here that earlier suit was taken up for hearing by Shri K.P. Singh, the then learned Civil Judge, Junior Division, Karnal, in whose Court the suit was pending on 16.1.2002 and it was adjourned for 5.4.2002 for cross-examination of witnesses of plaintiff at the request of counsel for the defendant. However, in the meantime, order was passed on transfer application by the then learned District Judge, Karnal, on 28.1.2002 transferring the case from the Court of Shri K.P. Singh, learned Civil Judge, Junior Division, Karnal to the Court of learned Civil Judge, Senior Division, Karnal. Counsel for both the parties had appeared before learned District Judge on 28.1.2002 and the parties were directed to appear before the transferee Court on 4.2.2002. On 4.2.2002, both counsel appeared before the transferee Court and the case was adjourned to 21.2.2002 for evidence of respondent-plaintiff. However, as on 21.2.2002, none appeared for the petitioner-defendant, he was proceeded ex parte and the cross-examination of the witnesses of the plaintiff on behalf of the defendant was recorded as nil. The case was adjourned for ex parte arguments on 13.3.2002, when the arguments were heard and the case was fixed for orders for 15.3.2002, on which date the impugned judgment and decree was passed vide which suit filed by respondent-plaintiff was decreed with cost.