ANWAR AHMED Vs. SMT. MAIMOONA BEGUM AND ORS.

JUDGEMENT

(1.) This petition under 227 of the Constitution of India has been filed against the order dated 17.08.2012 passed by the Additional District and Sessions Judge (Fast Track) No.5, Jaipur Metropolitan, Jaipur wherein on an application under Order 9 Rule 7 Code of Civil Procedure filed by the petitioner, as defendant in the suit for partition and permanent injunction, to set aside an order dated 23.09.1997 for ex-parte proceedings, the learned trial court has only allowed the petitioner-defendant to participate in the proceedings from the stage of the passing of the order dated 17.08.2012 i.e. at the stage of the evidence of the respondents-plaintiffs but denied liberty to file a written statement.

(2.) The facts of the case are that in a suit for partition and permanent injunction filed by the respondent-plaintiffs Nos.1 to 3 (hereinafter 'the plaintiffs'), ex-parte proceedings were taken against the petitioner-defendant (hereinafter 'the defendant') as also the respondents Nos.4 to 7 also defendants in the suit on 23.09.1997. Against the said ex-parte order dated 23.09.1997, the respondents-defendants Nos.4 and 5 moved an application under Order 9 Rule 7 Code of Civil Procedure before the trial court. That application was allowed on 28.04.2009 and the aforesaid respondents as defendants in the suit were allowed to file their written statements. The petitioner-defendant did not at that time move any application for setting aside of the ex-parte order dated 23.09.1997 before the trial court along with the other defendants aforesaid.

(3.) Subsequently, on 25.07.2012 the petitioner as co-defendant in the said suit moved an application under Order 9 Rule 7 Code of Civil Procedure stating that he came to know about the partition suit and the ex-parte order dated 23.09.1997 from the respondent No.5 only on 19.07.2012. It was submitted by the petitioner-defendant before the trial court that service qua the other defendants in the suit having been earlier found to be irregular in terms of Rule 133 of General Rules (Civil), 1986 (hereinafter 'the Rules of 1986') under the order dated 28.04.2009, it should be similarly so found qua the petitioner-defendant similarly situate and the ex-parte order dated 23.09.1997 qua him also be set aside and he be allowed to file a written statement and participate in the suit proceedings therefrom.