YAD RAM Vs. CAPT RAM AVTAR

JUDGEMENT

(1.) CM. No. 2378/CII/97 and CM. 8881/CII/97 were listed for hearing before this Court. The earlier CM is for grant of interim stay in relation to the proceedings pending before the learned trial Court, while the latter CM. relates to the extension of stay order already granted vide order dated 28.2.1997. On the consent of the learned counsel for the parties, revision petition itself was also heard on merits and order reserved.

(2.) At the very outset learned counsel appearing for the respondent raised preliminary objections that the revision petition itself is not maintainable, as proper remedy for the petitioners is to prefer an appeal before the Court of competent jurisdiction. He further contended that in consonance with the principles enunciated in the case of Purohit Swarupnarain v. Gopinath and Anr., A.I.R. 1953 Rajasthan 137 and Manga Singh v. Sararmal and Ors., A.I.R. 1957 Rajasthan 68, the petitioners herein can impugn and raise controversy in relation to the impugned order at the time of filing of the appeal, as such revision under Section 115 of the Code of Civil Procedure was also not maintainable. Reacting to the above contention, the learned counsel for the petitioners contended that no proper service had been effected upon the applicant and in fact the summons and munadi were effected on a wrong address in a different village. He further contended that no notice by registered post was sent in terms of the order of the Court and as such the applicant could not have been proceeded against ex parte (Order 9 Rule 4 C.P.C) vide order dated 9.1.1994 and resultantly the impugned order dated 9.10.1996 is liable to be set aside, as learned Court has failed to exercise its jurisdiction lawfully vested in it.

(3.) The facts giving rise to the present revision petition are that the plaintiff Capt. Ram Avtar had filed a suit for possession by way of specific performance of the agreement dated 10.6.1992 in relation to the land forming subject matter of the present suit. In the said suit, summons were ordered to be sent to the defendant. Thereafter, the Court had probably passed the order for effecting service by substituted method by way of proclamation in the village. As per the report on the summons, the defendant was served by proclamation and consequently, defendant was ordered to be proceeded against ex parte in the proceedings in the suit vide order dated 1.9.1994. The defendant-applicant having come to know of the proceedings, subsequently filed an application for setting aside the order dated 1.9.1994 ordering ex parte proceedings against her and prayed for relief to allow her to participate in the suit in accordance with the application and declined to allow the said application for the reasons stated in the order dated 9.10.1996, which has been impugned in the present revision petition.