K. THOMAS Vs. MANDIR SHRI JAGDISHJI BALBHADRAJI

JUDGEMENT

(1.) THIS miscellaneous appeal under Order 43 Rule 1(d) CPC has been filed by the appellant -defendant -applicant (hereinafter 'the defendant') against the order dt. 19.1.2005 passed by District Judge Sawai Madhopur dismissing the application under Order 9 Rule 13 CPC for setting aside the ex -parte decree dt. 9.8.2002 in favour of the respondent -non -applicant -plaintiff (hereinafter 'the plaintiff') in a suit for eviction and recovery of rent. Heard learned counsel for the parties, and perused the impugned order dt. 19.1.2005 passed by the trial Court.

(2.) THE facts of the case are that the plaintiff filed a suit for eviction and recovery of rent before the trial Court. Notice on the suit was served on the defendant on 24.2.2001 to appear before the trial Court on 1.3.2001. Yet the defendant remained absent and did not appear before the trial Court on 1.3.2001, and even thereafter. On 27.3.2001 proceedings in the suit were made ex -parte against the defendant. Thereupon the trial Court appears to have taken the plaintiff's evidence, heard the plaintiff and the ex -parte decree was passed on 9.8.2002. It is also a fact the plaintiff for a while did not move any application for setting aside the ex -parte order dt. 27.3.2001 or the ex -parte decree dt. 9.8.2002. Petition for execution of the ex -parte decree dt. 9.8.2002 was filed by the plaintiff. Notices on the execution petition were issued and served on the defendant. The defendant deposited Rs. 10,000/ - for satisfying the decreetal amount on 28.8.2003.

(3.) THE application under Order 9 Rule 13 CPC was opposed by the plaintiff on various grounds.