SUNIL KUMAR Vs. MOHINDER KUMAR

JUDGEMENT

(1.) THIS petition is instituted against the order dated 25.2.2015, rendered by the learned Civil Judge (Jr. Divn.)(II), Kangra at Dharamshala, H.P. in CMA No. 0000499/2014 in Civil Suit No. 527 of 2013.

(2.) KEY facts, necessary for the adjudication of this petition are that the respondent -plaintiff (hereinafter referred to as the plaintiff) has instituted a suit against the petitioner -defendant (hereinafter referred to as the defendant), to the effect that he was owner -in -possession over the suit land comprised in Khata No. 188, Khatauni No. 261, Kh. No. 952, total measuring area 00 -00 -46 Hects. and land comprised in Khata No. 195, Khatauni No. 268, Kh. No. 1961/953, total measuring area 00 -06 -23 hect., both situated in Mohal and Mauza Shahpur, Tehsil Shahpur, Distt. Kangra, H.P., as per jamabandi for the year 2009 -10. However, the defendant who is the owner -in -possession of adjacent land comprised in Khata No. 201, Khatauni No. 274, Kh. No. 1962/953, total measuring area 00 -01 -26, situated in Mohal and Mauza Shahpur, Tehsil Shahpur, Distt. Kangra, H.P, as per jamabandi for the year 2009 -10, has no right and title to interfere and encroach the suit land and construct septic tank under the ground level and also to construct the building. The suit was also filed for permanent prohibitory injunction restraining the defendant from interfering and taking forcible possession of the suit land.

(3.) THE written statement was filed by the defendant. The case came up before the trial Court on 12.5.2014. The next date was fixed for 13.6.2014. Since the plaintiff did not appear, the suit was dismissed for default. An application under Order 9 Rule 9 CPC was filed for setting aside the order dated 13.6.2014. The application was contested by the defendant. According to the averments made in the application, the matter was listed on 12.5.2014 and the Advocate on his behalf appeared and noted the next date of hearing as 15.6.2014. The Advocate came to the Court on 15.6.2014 and then he came to know that the suit was dismissed in default on 13.6.2014. According to the defendant, the next date of hearing was fixed for 13.6.2014 and not 15.6.2014. The application was allowed by the learned trial Court on 25.2.2015, hence this petition.