SHER SINGH Vs. SURESH KUMAR

JUDGEMENT

(1.) For reasons mentioned in the application which is accompanied by affidavit, delay of 60 days in filing the revision petition is condoned. The application stands allowed accordingly.

(2.) Defendants No. 1 and 2 moved application for setting aside aforesaid order dated 6.S.2002 and ex parte judgment and decree dated 7.2.2005 alleging that they were not tenants in the disputed shop. Defendant No. 1 was permanently settled in District Aurangabad (Maharashtra) whereas defendant No. 2 is an old person aged more than 85 years and was not in a position to carry on business in the shop. It was also pleaded that defendants never took the shop on rent from the plaintiff nor the plaintiff is owner thereof and therefore, no rent was due. However, plaintiff obtained order on 6.5.2002 regarding ex parte proceedings and ex parte judgment and decree dated 7.2.2005 against defendants. The defendants were never served in the suit. Therefore, ex parte judgment and decree are liable to be set aside. It was also alleged that defendant No. 2 was in fact not even proceeded against ex parte.

(3.) Respondent No. 1 plaintiff by filing reply controverted the averments made in the application by the defendants. It was pleaded that order dated 6.5.2002 of proceeding ex parte against defendants and the consequent ex parte judgment and decree dated 7.2.2005 have been passed legally and validly. Defendants were duly served in the suit but they did not appear. Defendant No. 1 Sher Singh had even filed complaint under sections 107/151 of the Code of Criminal Procedure (in short, "Cr.P.C.") in the court of Executive Magistrate stating himself to be tenant in the disputed shop and alleging that plaintiff wanted to oust them from the disputed shop forcibly. It was denied that defendant No. 1 was residing in District Aurangabad or defendant No. 2 was not in a position to carry on business in the shop. It was also denied that defendants were not tenants in the shop. Various other pleas were also raised.