BHORI LAL ALIAS BHANWAR LAL Vs. SUWA DEVI

JUDGEMENT

(1.) These two civil revision petitions were preferred by petitioners-plaintiff aggrieved from a common order dtd. 27/9/2019 in two civil misc. applications No. 234/2014 titled as 'Gulab Devi Vs. Bhori Lal' and 25/2014 titled as 'Suwa Devi Vs. Bhori Lal' under Order IX Rule 13 of CPC, passed by learned Additional District Judge No.19, Jaipur Metro, Headquarter Sanganer, whereby judgment and decree dtd. 24/10/2013 in civil suit No. 32/2013 titled as Bhori Lal Vs. Gajanandi and Ors. was set aside and civil suit was re-registered for trial.

(2.) Learned counsel for the petitioner-plaintiff while relying upon grounds of revision petition submitted that plaintiff-Bhori Lal has filed a civil suit before learned Additional District Judge for specific performance and permanent injunction, wherein notices were issued to all defendants. He further submitted that Suwa Devi was arrayed as defendant No.4, whereas Gulab Devi as defendant No.7 and both were served notices in accordance with Order V of CPC. He further submitted that defendant No.4 Suwa Devi remained absent after service of notice and the trial court has proceeded ex parte against her whereas respondent No.7 Gulab Devi has filed an affidavit and adopted written statement filed by defendant No.1-Gajanandi. He also submitted that on basis of admission under Order XII Rule 6 CPC, the suit was decreed by the Trial Court. He further submitted that after passing of decree on 24/10/2013, an application was filed after several months under Order IX Rule 13, read with Sec. 151 CPC by Suwa Devi for setting aside the ex parte decree on the ground that the notice of civil suit was not served upon her on 24/1/2013, as no one has visited the place of residence of applicant-defendant. He further submitted that thereafter another application under Order IX Rule 13 CPC was filed by Gulab Devi on the ground that she has not appointed any counsel as she has not received any notice. He further submitted that both these applications were considered together and without any reasonable and sufficient ground delay was condoned by the trial court. He also submitted that the trial court, without considering the fact that no other defendant has raised any objection about non-service of notice, considered the facts beyond the record and set aside the judgment and decree passed under Order XII Rule 6 of CPC. He also submitted that the trial court has not only set aside the judgment and decree against these two non-petitioners applicants but also against all defendants which is contrary to settled proposition of law.

(3.) He further placed reliance upon judgment in case of Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadhaji Patil (1960) 62 BOMLR 722 and submitted that under Order IX Rule 13 CPC, a decree can be set aside against all defendant(s), if decree is of such a nature that it cannot be set aside against one defendant only. He further submitted that in the instant case, it is not necessary to set aside the decree against all the defendants as decree is separable. He further the referred the judgment in case of Raj Kumar Vs. Kishenlal (1953) RLW Raj. 524 and submitted that in a suit for specific performance decree is not required to be set aside against all defendant(s) under Order IX Rule 13 of CPC. At last, he submitted that out of 10 defendant(s) only two has resisted and challenged agreement to sell but remaining 8 have already executed sale deed in pursuace of judgment and decree, therefore, it is not a worthwhile to set aside the decree against eight defendants who accepted the judgment and decree.