BALDEV SINGH Vs. LABH SINGH

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is directed against order dated 23.1.2002 allowing the application of the defendant-respondent filed under Order 9 Rule 13 of the Code. The ex parte judgment and decree dated 15.12.1994 and the correction carried on 11.8.1994 have been set aside subject to payment of Rs. 1,000/- as costs. It has further been ordered that the main case would proceed further from the stage of filing of the written statement by the defendant-respondent. The principal reasons which weighed with the Civil Judge (Jr. Division), Patiala for allowing the application filed under Order 9 Rule 13 of the Code are that; (a) the plaintiff-respondents have failed to furnish any affidavit in response to the reply to the application filed by the defendant-respondent rebutting his pleadings; (b) the averments made in the plaint i.e. in Civil Suit No. 4140 of 16.8.1993 by the plaintiff- petitioners are that the defendant-respondent dispossessed him in 1988 and the suit has been filed admittedly in 1993; (c) the copy of the plaint did not accompany the summons; and (d) the Process Server has not been examined by the plaintiff-petitioners to prove service of process.

(2.) MR . Arun Palli, learned counsel for the plaintiff-petitioners has argued that a perusal of interlocutory order dated 7.12.1993 would show that the defendant-respondent was served on that date and the case was posted for hearing on 21.12.1993 for ex parte evidence of the plaintiff-petitioner. Thereafter, the case has been listed on four different dates but at no point of time the defendant-respondent had appeared. Learned counsel has also pointed out that the judgment and decree dated 15.2.1994 was eventually passed in favour of the plaintiff-petitioner and in order to get corrected some typographical and clerical mistakes in the aforementioned judgment and decree, an application was filed which was allowed on 11.8.1994 and even notice of that application was issued to the defendant-respondent. He has also made a reference to the statement of AW1 Hari Singh son of the defendant-respondent who has stated that he visited along with one Ram Asra to the Patwari on 11.8.1994 where he acquired knowledge about the decree. According to the learned counsel, the whole version of the defendant-respondent as high-lighted in the impugned order would be exposed if the statement of Hari Singh AW1 is taken into consideration.

(3.) THE provisions of Order 9 Rule 13 of the Code came up for consideration of the Supreme Court in the case of G.P. Srivastava v. R.K. Raizada and others, 2000(2) RCR(Civil) 161 (SC) : (2000) 3 SCC 54. Their Lordships of the Supreme Court opined for liberal construction of the aforementioned provisions and observed as under :-