BRIJ INDER SHARMA Vs. VIJAY KAPOOR (SINCE DECEASED)

JUDGEMENT

(1.) Assailing the order dated 21.11.2016 passed by learned Civil Judge (Junior Division), Amritsar by virtue of which the application under Order 9, Rule 13 read with Section 151 of the Civil Procedure Code for setting aside the ex parte judgment and decree dated 19.04.2011 filed by contesting respondent was allowed, the instant petition has been filed. The submissions made Mr. Veneet Sharma, learned counsel representing the petitioner have been considered.

(2.) The facts indicated by learned trial Court in the impugned order are that respondent Vijay Kapoor (since deceased and now represented by his legal representatives) had filed a suit for recovery of Rs.42,894/- against the petitioner and one Rajinder Kumar Sharma. On notice of the suit, the petitioner and his co-defendant appeared and filed his written statement as well as the counter claim. When the suit as well as the counter claim were fixed for 03.09.2009, neither the plaintiff-respondent nor the petitioner and his co-defendant appeared in the Court as a result of which the suit as well as the counter claim were dismissed for want of presence of the parties. Subsequently, on 04.09.2009 the petitioner and his co-defendant moved an application for restoration of their counter claim which was restored by the Court and an ex parte decree dated 19.04.2011 was passed against the respondent-plaintiff. In September, 2011 when the respondent came to know about the ex parte decree, he filed an application for setting aside the ex parte decree.

(3.) Learned counsel for the petitioner argued that there was no ground for setting aside the ex parte judgment and decree passed by learned trial Court in due process of law. In his application, the respondent-plaintiff did not mention the date on which he had come to know about the ex parte judgment and decree. Learned counsel also submitted that no substantive and reliable evidence could be produced by the respondent-plaintiff to prove that the parties had entered into a compromise and complying with the terms of the said compromise the respondent-plaintiff had not appeared before learned trial Court on the date on which his suit was dismissed in default.