AMRIT KAUR Vs. INDERPAL KAUR

JUDGEMENT

(1.) The present revision petition under Article 227 of the Constitution of India has been filed for setting aside the impugned order dtd. 10/1/2019 whereby the application under Order 9 Rule 13 CPC filed by the defendant-respondents has been allowed.

(2.) The brief facts relevant to the present lis are that the plaintiffpetitioner filed a suit for joint possession against the defendant-respondents herein who are none-other than the daughter-in-law and grand-children of the plaintiff-petitioner. The defendant-respondents were proceeded against ex-parte and vide judgment and decree dtd. 3/9/2016 the suit was decreed. The defendant-respondents filed an application for setting aside the ex-parte order dtd. 28/8/2016 and the ex-parte judgment and decree dtd. 03/09/2016. The Trial Court vide impugned order dtd. 10/1/2019 allowed the application and the ex-parte order dtd. 28/8/2016 as well as the exparte judgment and decree dtd. 3/9/2016 were set aside and the suit was restored to its original number. Hence, the present revision petition.

(3.) Learned senior counsel appearing on behalf of the plaintiffpetitioner would contend that as far as the minors are concerned, since they were not represented by a guardian they cannot be considered defendants and no application under Order 9 Rule 13 CPC would be maintainable at their behest. In support of his argument, learned counsel has relied upon the judgment of Gauhati High Court in the case of Budhai Nepal Chandra Lalit Moban Saha Firm & Anr. Vs. Sudhangshu Ranjan Dev & Ors. [AIR 1976 (Gauhati) 7] and Gendalal Vs. Sitabai Bhagwat [AIR 1957 (Madhya Bharat) 10]. It is further the contention of the learned counsel that where the mother is concerned, she was duly served and that as per the summons dtd. 24/6/2015 she had flatly refused and affixation was done. Thereafter, even munadi was effected and as per the report dtd. 22/7/2015 it has been stated that after effecting the munadi a copy of summons were also affixed on the house of the addressee.