MOHAN LAL Vs. BALWANT RAJ

JUDGEMENT

(1.) O W 104 No. 91/2017

(2.) The background facts leading to the filing of this petition deserve to be noticed, though briefly. The petitioner filed a suit under Order XXXVII of the Code of Civil Procedure against the respondent for recovery of an amount of Rs.1.00 lac on the basis of Hundi allegedly executed by the respondent in favour of the petitioner. In response to requisite notice issued by the Trial Court, the respondent caused his appearance in the Trial Court within the statutory period of ten days and sought leave to defend the suit on the ground that there was neither any money transaction between the parties nor had he executed or signed the Hundi. The respondent, however, absented from the court after filing application seeking leave to defend and was thus, set ex parte by the Trial Court on 13.0200 On the adjourned date i.e. 26.2002, the respondent moved an application for setting aside an ex parte proceedings. The Trial Court instead decreed the suit of petitioner on 23.11.200 Subsequently the respondent moved for setting aside decree but the application made for the purpose was dismissed by the Trial Court on 28.4.2004 holding that the decree passed under Order XXXVII of the Code of Civil Procedure, was not an ex parte decree .

(3.) Aggrieved, the respondent filed revision petition before this Court. Vide order dated 14.11.2006, this Court allowed the revision petition treating the same as an application under Order XXXVII Rule 4 of the Code of Civil Procedure and granted leave to the defendant to defend the suit subject to his filing security from a surety of substance and means. As is gatherable from the records, on receipt of file from this court, the respondent who was supposed to file security from a surety of substance and means in terms of Order dated 14.11.2006, instead filed his written statement. It further appears that on the basis of pleadings of the parties , five issues were framed by the Trial Court , three of which were treated as preliminary and decided in favour of the petitioner . The revision petition filed against the decision on preliminary issues by the respondent was dismissed by this court. Resultantly, the remaining issues were tried by the Trial Court by providing opportunity to the parties to lead evidence. The Trial Court after considering the arguments of the learned counsel for the parties and appreciating the evidence that had come on record, dismissed the suit of the petitioner vide its judgment dated 12.8.2016, impugned in this petition. It is this judgment and decree dated 12.8.2016 passed by the Trial Court, which is called in question in this petition.