ASHIQ KUSSAIN Vs. MUZAFFAR ALI HAKEEM

JUDGEMENT

(1.) The appellants, through the medium of present appeal, have challenged order dtd. 25/3/2024, passed by the learned Principal District Judge, Anantnag, whereby their application filed by under Order IX Rule 13 of the Code of Civil Procedure for setting aside of exparte judgment and decree dtd. 22/6/2022 passed by the same Court, has been dismissed.

(2.) It appears that respondent No.1 (hereinafter referred to as "the plaintiff") had filed a suit for mandatory injunction seeking eviction of the predecessor-in-interest of the appellants and proforma respondent No.2, namely, Mohammad Yousuf Shah (hereinafter referred to as "the defendant) from two shops situated at General Bus Stand, Anantnag. After summons were issued to the defendant, the same were stated to have been served upon him on 30/7/2021. On 20/8/2021, the learned trial court recorded that the summons have been duly served upon the defendant and the case was adjourned to 18/10/2021 for awaiting his appearance. On 18/10/2021, when the defendant did not appear, the learned trial court proceeded exparte against him and the plaintiff was directed to lead evidence in exparte.

(3.) It appears that during pendency of the suit, the original defendant died on 23/10/2021 and on 5/11/2021, an application came to be filed by the plaintiff for bringing on record legal heirs of the deceased defendant. On 1/12/2021, the proposed legal representatives of the deceased defendant (the appellants herein) were proceeded exparte and the plaintiff was directed to produce evidence by way of affidavits. However, on 28/1/2022, the learned trial court realized that the service of proposed legal heirs of the deceased defendant had not been effected, as such, order dtd. 1/12/2021 was recalled and the Registry was directed to issue fresh summons to the legal heirs of the deceased defendant (appellants herein).