MOHAN SINGH BAIRWA Vs. ROOP CHAND RAHARIYA

JUDGEMENT

(1.) WITH the consent of the learned counsels for the parties, the appeal is heard finally at the admission stage.

(2.) THE present appeal has been filed by the appellant defendant under Order XLIII, challenging the order dated 05.09.2011 passed by the Additional District Judge No.3, Jaipur (hereinafter referred to as "the trial court ") in Civil Misc. Case No.67/2010, whereby the trial court has dismissed the application of the appellant defendant filed under Order IX Rule 13 of CPC, for setting aside the ex parte decree dated 25.03.2010 passed in Civil Suit No.148/2009.

(3.) THIS Court after hearing the learned counsels for the parties on 23.08.2013, was prima facie of the opinion that the trial court had proceeded with the suit ex parte with undue haste and without verifying the record as to whether the defendant was properly served or not, and that the concerned Reader of the trial court had also acted without any authority by drawing the order sheet dated 21.12.2009 in the suit. This Court, therefore, had called for the remarks from the concerned Presiding Officer and also the concerned Reader of the trial court. Both have submitted their remarks. The concerned Reader, who is now retired, submitted that concerned Presiding Officer was on leave on 21.12.2009 and since many matters were listed on that date, the signature on the order sheet had remained to be obtained from the concerned In charge Presiding Officer. The concerned Presiding Officer has submitted interalia that he was on leave on 21.12.2009 and 22.12.2009, on which date the concerned In charge Presiding Officer had passed the order for proceeding ex parte and that he had passed the decree as the evidence of the plaintiff was not challenged by the appellant defendant. Neither the explanation submitted by the Reader nor the explanation submitted by the Presiding Officer is found to be satisfactory. From the order sheets of the suit, it clearly transpires that the suit was filed on 19.12.2009 and the notice issued to the defendant was made returnable on 21.12.2009. On 21.12.2009, the Presiding Officer was on leave and the order sheet was drawn by the Reader as under: ...[VERNACULAR TEXT OMMITED]...