BADRI RAM Vs. NARAYAN RAM

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE appellants are aggrieved against the order dated 23-7-2008 passed by the court of Additional District Judge No. 3, jodhpur by which the learned trial Court dismissed the appellants' application filed under O. 9, R. 13, C. P. C. as well as application under Section 5 of the Limitation Act seeking setting aside of the ex parte decree dated 21-8-2007.

(3.) BRIEF facts of the case are that a suit for possession was filed by the plaintiff-respondent against the defendant-appellants with the allegation that in the suit shop situated in commercial area i. e. Stadium shopping Centre, Kalpatru Cinema Road, Jodhpur, the defendants-appellants were running. their shop M/s. Mahadev Travels as licencee of the plaintiff-respondent because of the reason that they had well acquaintance with the plaintiff. It is submitted in the plaint that the defendants who are running commercial enterprises in the shop in dispute would hand over the vacant possession of the suit property as and when the possession will be demanded by the plaintiff. In the month of December 2004, the plaintiff came to know that defendants started material alteration in the suit premises which was objected by the plaintiff by sending telegram and thereafter the plaintiff demanded possession of the suit property from the defendants. In view of the above, according to the plaintiff, the defendants' licence was terminated. The plaintiff also claimed mesne profit @ Rs. 25,000/- per month from the Month january, 2005 and in the suit, decree for rs. 2 lacs as arrears of mesne profit was claimed. The said suit was registered in the trial Court only on 13-9-2006 and summons were issued to the defendants by order dated 18-9-2006. The summons issued to the defendants was not found served, then on 3-11-2006, fresh summons were issued to the defendants for the date 14-12-2006. On 14-12-2006, an application was filed for substitute service and that too, by publication of notice in the newspaper which was allowed by the trial Court and by this mode of substitute service, the summons were served upon the defendants. On 25-1-2007, in response to the summons, the defendants' advocate put in appearance and case was adjourned to 7-3-2007. On 7-3-2007, since the Presiding Officer was not available due to transfer, case was adjourned to 10-4-2007. On 10-4-2007, the case was adjourned to 24-4-2007. On 24-4-2007, right of the defendants to file written statement was closed as the written statement was not filed and case was adjourned to date 16-5-2007. After writing this order posting the case to 16-5-2007, learned counsel for the plaintiff requested for hearing of the application submitted by the defendants for extension of time for filing the written statement under Section 148, C. P. C. That application was dismissed on the same day i. e. 24-4-2007. On 16-5-2007 i. e. on the next date, affidavit of plaintiff was filed and case was adjourned for cross-examination of plaintiff to 25-5-2007. On 25-5-2007, nobody appeared on behalf of the defendants, therefore, the trial Court proceeded to pass ex parte against the defendants and closed the evidence of the plaintiff and fixed the date 3-7-2007 for arguments. On 3-7-2007, due to transfer of Presiding Officer, case was adjourned to 25-7-2007. On 25-7-2007, the case was adjourned to 21 -8-2007 and on the said date, the decree was passed for eviction against the defendants-appellants with a decree of Rs. 2 lacs as arrears of mesne profit and further decree for mesne profit @ rs. 10,000/- per month till possession is delivered to the plaintiff.