NAND KISHORE SAH Vs. LALAN SAH AND ORS.

JUDGEMENT

(1.) Aggrieved by order dated 17.04.2012 in Civil Miscellaneous Appeal No. 5 of 2012, the present writ petition has been filed.

(2.) The petitioner was plaintiff in Title (Declaration) Suit No. 9 of 2002. In the suit one Lalan Sah was defendant no. 12. The defendant nos. 1 to 4, 6 and 8 to 13 filed a common written statement. After the plaintiff's evidence was closed, the defendants failed to adduce evidence though, several opportunities were granted by the trial court. Finally, the defendants' evidence was closed vide order dated 03.06.2011. The trial court decreed the suit vide judgment and order dated 26.07.2011. The decree was sealed and signed on 03.08.2011. The defendant no. 12 preferred Title Appeal No. 37 of 2011 against the judgment and order passed in Title (Declaration) Suit No. 9 of 2002 however, he filed an application for withdrawing the appeal. The said application was allowed on 25.11.2011 and thereafter, the defendant no. 12 (respondent no. 1 herein) filed a petition under Order IX Rule 13 CPC for setting aside judgment and order dated 26.07.2011 and decree dated 03.08.2011. The said application was registered as Miscellaneous Case No. 6 of 2011. The Miscellaneous Case was dismissed on 13.07.2012, against which the respondent no. 1 filed Civil Miscellaneous Appeal No. 5 of 2012. The appeal preferred by respondent no. 1 has been allowed vide order dated 17.04.2012. Aggrieved, the petitioner has approached this Court.

(3.) Heard the learned counsel for the parties.