TRIVENI SAO Vs. RAMDHEYAN SINGH

JUDGEMENT

(1.) This Civil Revision application is directed against the order dated 28.3.2011 passed by learned 1st Additional District Judge, Aurangabad in Miscellaneous Appeal No. 9 of 2010/1 of 2010, whereby the learned appellate court while dismissing the appeal, has affirmed the order dated 28.5.2010 passed by 1st Subordinate Judge, Aurangabad in Miscellaneous Case No. 4 of 2006 dismissing the application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the 'Code') for setting aside the ex parte judgment and decree dated 20.5.2004 passed in Title Suit No. 255 of 2002. With the consent of the parties the matter has been taken up for final disposal at the stage of admission itself.

(2.) The suit in question was filed by the plaintiff-opposite party seeking a decree for specific performance on the basis of unregistered agreement to sale dated 13.5.2000 stated to have been executed by the defendant-petitioner in relation to 1.86 acres of land for a consideration amount of Rs. 1,60,000/- of which Rs. 1,29,000/- stated to have been adjusted against different payments made by the plaintiff to the defendant in the shape of cash and crops. The balance of Rs. 60,000/- was to be paid on the execution of the sale deed. The suit was admitted on 17.1.2003 and the plaintiff was directed to file Talbana within a period of one week for issuance of notice on the defendant. Although the matter was fixed for the purpose of issuance of notice on 21.2.2003 but for the reasons best known the date was advanced and was taken up on 18.1.2003 when the trial court taking note of the filing of the requisites for issuance of summons and for issuances of notice under registered cover directed the office to issue summons. The matter was thereafter taken up on the date fixed i.e. on 21.2.2003 when an affidavit was filed by the plaintiff that the defendant was avoiding to respond to the notice. The trial court in the circumstances directed for paper publication and the matter was fixed for 20.5.2003. Again though the matter was fixed on 20.5.2003, the trial court advanced the date by almost two months and took it up on 22.3.2003 when a copy of notice by way of paper publication was submitted by the plaintiff by way of substituted service. The trial court directed the office for issuance of notice by paper publication. On the date fixed i.e. 20.5.2003, the plaintiff filed the copy of the newspaper by way of free sabut and the matter thereafter being adjourned awaiting appearance of the defendant, the trial court by order passed on 26.9.2003, in view of the paper publication by way of substituted service accepted service on the defendant and the matter was fixed for ex parte hearing. By judgment and decree passed on 20.5.2004 the suit was decreed ex-parte and direction was issued to the defendant to execute a formal sale deed with the further stipulation that if he failed to do so within the stipulated period the same would be carried out through the process of the Court. The defendant was also restrained from interfering with the possession of the plaintiff over the suit property. Upon failure of the defendant to execute the sale deed within the period of three months stipulated in the judgment and decree dated 20.5.2004 passed in the Title Suit, the plaintiff filed Execution Case No. 4 of 2004 for execution of the sale deed through the process of the Court. It is stated that notice was issued in the Execution Case which was again stated to be served on the defendant who refused to accept the same and did not choose to appear. A sale deed was thus executed through the process of Court on 3.1.2006. The plaintiff filed a Mutation Case No. 95 of 2005-06 and his name stood mutated in the records by order passed on 20.4.2006. An appeal was filed by the defendant questioning the order of mutation passed by the Circle Officer and which was dismissed on 20.1.2007.

(3.) The defendant filed an application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree passed in the Title Suit giving rise to Miscellaneous Case No. 4 of 2006. The trial court upon consideration of the oral and documentary evidence adduced by the parties, dismissed the Miscellaneous Case vide order passed on 28.5.2010. The defendant being aggrieved by the order of dismissal of his Miscellaneous Case preferred a statutory appeal under Order 43 Rule 1(d) of the Code and which also was dismissed by the order impugned dated 28.3.2011 of the appellate court and hence the present Civil Revision application.