PREM SINGH Vs. RAMA KISHAN

JUDGEMENT

(1.) In this miscellaneous appeal filed under Section 104, read with Order 43 Rule 1, Civil Procedure Code , the defendant appellant is challenging the impugned order dated 20.01.2009 passed by the Addl. District Judge No.3, Jodhpur in Civil Misc. Application No.95/07 and prayed that the application of the appellant filed under Order 9 Rule 13, read with Section 151, Civil Procedure Code for setting aside the ex parte judgment and decree dated 11.06.2006 may be allowed.

(2.) As per facts of the case, a suit for mandatory and permanent injunction was preferred by respondent plaintiff before the District Judge, Jodhpur. In the said suit, after issuing notice by the trial Court, written statement was filed by the appellant-defendant and,2 later on, issues were framed and trial Court proceeded for the trial. On 12.11.2005, an application under Order 11 Rules 12 & 14, Civil Procedure Code was filed by the respondent-plaintiff for seeking direction to the appellant-defendant to place on record the original sale deed of his house. In pursuance of the order dated 11.11.2005, after taking two adjournments, on 27.05.2006, said document was placed before the Court as ordered by the trial Court. The matter was ordered to be fixed on 24.07.2006; but, on that date, due to non-appearance of counsel for the appellant-defendant, ex parte order was passed against the appellant defendant and the learned trial Court proceeded to conduct the trial. Finally, after providing opportunity to lead evidence to the plaintiff, the learned trial Court decreed the suit vide judgment dated 11.09.2006 in absence of the appellant-defendant because ex parte order was made due to non-appearance of the counsel for the appellant-defendant on 24.07.2006. Learned trial Court vide judgment dated 11.09.2006 decreed the suit and passed decree for permanent injunction and specifically the following order was passed :

(3.) The appellant-defendant filed application under Order 9 Rule 13, read with Section 151, Civil Procedure Code for setting aside the aforesaid ex parte judgment and decree dated 11.09.2006. In the said application, after issuing notice, reply was filed by the plaintiff respondent to the application filed under Section 5, Limitation Act, so also, against the application filed under Order 9 Rule 13, Civil Procedure Code