PREM CHAND Vs. HARCHAND

JUDGEMENT

(1.) HEARD learned counsel for the parties. The plaintiff -petitioners have preferred this civil revision petition under Sec. 115 of the Code of Civil Procedure against the impugned order dt. 13.10.2010 passed by Additional District Judge No. 2, Deeg (District Bharatpur) in Civil Misc. Case no. 2/2009 whereby the learned Court below by allowing the application filed by the defendant -non -petitioner under Order 9 Rule 13 CPC has set aside the ex -parte decree dt. 16.7.2008 passed in Civil Suit No. 2/2008.

(2.) BRIEF relevant facts for the disposal of this revision petition are that plaintiff -petitioners filed a suit for specific performance against the defendant -non -petitioner in the Court below which was registered as Civil Suit No. 2/2008. On 31.1.2008 an order was passed by the Court below to proceed ex -parte against the non -petitioner on the ground that he has not appeared before the Court despite the fact that summon has been duly served upon him. Ultimately, an ex -parte judgment and decree was passed on 16.7.2008 in favour of the petitioners and against the non -petitioner. Thereafter, the non -petitioner filed an application under Order 9 Rule 13 CPC for setting aside of the ex -parte decree dt. 16.7.2008 in the Court below on 5.1.2009 mainly on the ground that service of summons was not duly effected upon him and the order dt. 31.1.2008 to proceed ex -parte against him and subsequent ex -parte judgment and decree dt. 16.7.2008 were wrongly passed against him. It was also stated by the non -petitioner that the fact of ex -parte decree came into in his knowledge only on 9.12.2008. The petitioners filed reply to that application on 12.2.2009 and both the parties produced oral as well as documentary evidence in support of their respective contentions. Learned Court below after hearing both the parties and considering the material available on record and the relevant legal provisions and the legal position found that service of summons on the non -petitioner is doubtful and in the facts and circumstances of the case, the principle of natural justice demands that opportunity of hearing may be afforded to the non -petitioner. Consequently, the application filed under Order 9 Rule 13 CPC was allowed by reason of impugned order dt. 13.10.2010 and the ex -parte judgment and decree dt. 16.7.2008 was set aside. It is pertinent to note that a cost or Rs. 1,000/ - was imposed upon the non -petitioner. Feeling dissatisfied with the impugned order, the plaintiff -petitioners are before this Court by way of this civil revision petition.