AMI CHAND Vs. PARTAPA

JUDGEMENT

(1.) CHALLENGE in this revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') is to the order dated August 9, 2000 passed by the Additional District Judge, Kaithal, dismissing the appeal of the defendant-petitioner, in which the order darted May 25, 1998 was challenged. The Additional Civil Judge (Senior Division), Kaithal, vide his order dated May 25, 1998 had dismissed the application of the defendant-petitioner under Order 9 Rule 13 seeking setting aside of the ex parte judgment and decree dated August 1, 1988 passed by the Civil Judge, Kaithal in Civil Suit No. 529 of 1987 titled as Partapa v. Sarupa.

(2.) BRIEF facts of the case which are necessary to decide the legal controversy raised may briefly be noticed. Plaintiff-respondent No. 2 filed a Civil Suit No. 473 of 1984 titled as Partapa v. Sarupa for a permanent injunction regarding the property in dispute. The suit was, however, dismissed on July 23, 1987. In that suit, the plea of family settlement was not set up by the plaintiff Partapa. As a consequence another Civil Suit No. 529 of 1987 was filed in July, 1987 by Partapa-respondent No. 2, in which the ex parte decree dated August 1, 1988 was passed by the Civil Judge, Kaithal. Defendant- petitioner filed an application with the allegation that he was never served in the suit and when he came to know about passing of the ex parte decree in the month of February, 1989, he immediately filed an application under Rule 13 of Order 9 of the Code with a prayer that the ex parte decree dated August 1, 1988 be set aside. Various allegations were levelled pleading fraud and ulterior motive against the plaintiff-respondent. It was alleged that the Civil Suit No. 529 of the 1987 was barred under Rule 2 of Order 9 as well as Rule 2 of Order 2 of the Code. Similar other objections were also raised with regard to maintainability of the suit like misjoinder of parties, non-payment of Court fee and lack of jurisdiction. After issuing notice of the application to the plaintiff-respondent, various issues were framed by the Civil Judge, which read as under :

(3.) I have heard Mr. S.P. Singh, learned counsel for defendant-petitioner and Mr. Rakesh Gupta, learned counsel for the plaintiff-respondent.