RAJESH KOCHHAR Vs. BABA RAM

JUDGEMENT

(1.) This civil revision was instituted on 25th February, 1992. Since the respondent had put in appearance on the basis of caveat, formal notice was not issued to the respondent. Record of the court below was summoned and thereafter the case was heard on number of occasions* Earlier, the case was heard by Mr. Justice V K. Mehrotra, but the matter could not be disposed of. Again, the case was listed for admission. Arguments were heard in part on 6th November, 1992 and on 9th November, 1992. Today, the Counsel for the parties have been heard at length and I have perused the record of the court below.

(2.) The order impugned against is the one by which the Senior Sub - Judge, Shimla allowed an application of the defendant -respondent under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) to set aside the ex -parte judgment and decree passed in favour of the plaintiff -petitioner on 15th January, 1990.

(3.) It is necessary to narrate some facts. On 2nd December, 1989, a suit for recovery of possession of a residential set located in Chakkar, Shimla was filed by the petitioner against the respondent in the Court of Senior Sub -Judge, Shimla claiming that the same was located outside Municipal limits of Shimla The respondent was proceeded against ex -parte on 4th January, 1990. After recording the petitioners ex parte evidence on 15th January, 1990, the suit was decreed exparte on the same day. On the fourth day of the passing of the decree, execution petition was filed and the actual dispossession of the respondent took place on 25th May, 1990. On 5th July, 1990, an application for setting aside the ex -parte decree was preferred, which was opposed by the petitioner and the trial Court after recording a finding that the summons had not been duly served upon the respondent, set aside the ex -parte decree, which is under challenge.