SUMER MAL LRS OF LATE Vs. SHIV SINGH

JUDGEMENT

(1.) This second appeal under Section 100 CPC is directed against the judgment and decree dated 19.1.2005 pased by the District Judge, Jalore, whereby the judgment and decree dated 20.2.2001 passed by the Civil Judge (Jr.Div.), Jalore has been upheld.

(2.) The facts in brief may be noticed thus : the respondentplaintiff filed a suit for specific performance of oral agreement pertaining to Plot No.F-52, situated at Near Bus Stand, Jalore. On the summons being issued and despite service, when no one appeared on behalf of the defendant, the matter proceeded exparte. After recording evidence of three witnesses, the trial court came to the conclusion that the agreement exists between the parties; a sum of Rs.14,000/- was paid by the plaintiff; he was ready and willing to perform his part of contract and consequently, a decree for specific performance of contract was passed by the trial court ex-parte against the appellants. Instead of filing application under Order IX, Rule 13 CPC, the appellants filed an appeal under Section 96 CPC and sought to raise contentions regarding improper service and the trial court wrongly setting the matter ex-parte against him.

(3.) The appellate court after hearing the parties, came to the conclusion that the appellants had no case on the aspect of the ex-parte decree and consequently, dismissed the first appeal. Feeling aggrieved the present second appeal has been filed. It is submitted by learned counsel for the appellants that the trial court fell in error in decreeing the suit filed by the plaintiff. The suit was based on an oral agreement, however, the trial court without even insisting for the proof of necessary ingredients, in a suit for specific performance and without considering the aspect of limitation has passed a decree and therefore, the appeal deserves to be admitted on the substantial question of law suggested in the memo of appeal. Opposing the contentions, learned counsel for the respondent submitted that the appellants were set ex-parte by the trial court and thereafter, the ex-parte decree was passed. Before the first appellate court, only issues pertaining to setting the suit ex-parte were raised, which were held against the appellants and therefore, now the submissions on merit, besides the fact that they have no substance, cannot be made. I have considered the rival submissions.