KALI RAM Vs. SHANTI AND ORS.

JUDGEMENT

(1.) CHALLENGE in the present revision petition filed under Article 227 of the Constitution of India by the petitioner -plaintiff No. 2 is to the order dated 13.9.2011 passed by the Additional District Judge, Sonepat whereby the appeal of defendants Nos. 28 to 32 and 34 to 42 was allowed and the matter was remitted to the trial Court to decide the application under Order 9 Rule 13 CPC after framing of issues and after affording one effective opportunity to each of the parties.

(2.) COUNSEL for the petitioner has argued on the strength of the judgment of the Apex Court in Fiza Developers & Inter -Trade P. Ltd. Vs. AMCI (I) Pvt. Ltd. and another : 2009 (17) SCC 796 to submit that it is not necessary for the trial Court to frame issues once there was sufficient material to show that the said defendants had been served and chosen to stay away from the proceedings. It is further submitted that the application under Order 9 Rule 13 CPC was time barred and the application was rightly dismissed by the trial Court vide order dated 16.8.2010 and the appeal was wrongly allowed by the Lower Appellate Court.

(3.) A perusal of the paper book would go on to show that petitioner -plaintiffs had filed a suit for partition which was decided ex -parte on 15.12.1995 and preliminary decree had been passed. Thereafter, the Local Commissioner was appointed before preparing final decree and another ex -parte order dated 15.6.2005 was passed and the final decree was prepared on 3.8.2006. The applicants filed an application dated 14.5.2007 (Annexure P/1) for setting aside the ex -parte judgment and decree on the ground that they were not personally served and no copy of the plaint had been supplied to them with the summons. No satisfaction had been recorded by the trial Court and Munadi had not been effected in the village. The date of knowledge was alleged to be 20.4.2007 when possession was sought to be taken and resultantly the application had been filed and the ex -parte decree dated 3.8.2006 was sought to be set aside.