MADHURI SHARMA AND OTHERS Vs. SABITA DEVI

JUDGEMENT

(1.) The petitioner is aggrieved of order dated 10.2.2016 passed in Chief Miscellaneous Appeal No. 06 of 2015 and order 3.3.2016 passed in Civil Miscellaneous Case No. 6 of 2016. Another prayer is for setting-aside judgment and decree dated 8.8.2013 passed in Title (D) Suit No. 25 of 2002. Petitioner is the defendant in the eviction suit.

(2.) Briefly stated. Title (D) Suit No. 25 of 2002 was instituted for ejection of the petitioner from the tenanted premises on the ground of default in payment of rent and personal necessity of the plaintiff. A decree for declaration of plaintiffs ownership over the suit property and recovery of possession of the tenanted premises was also sought. In the suit, the defendant appeared on 15.3.2002 and prayed time for filing written statement, however, in spite of sufficient opportunities granted, he did not file written statement and consequently, he was debarred from filing written statement vide order dated 10.12.2002. Thereafter, the suit proceeded ex parte. The plaintiff examined six witnesses and produced several documents. The suit was decreed vide judgment and order dated 8.8.2013 and the decree was sealed and signed on 17.8.2013. The petitioner filed an application on 14.2.2014 vide. Misc. Case No. 04 of 2014 purportedly under Order IX, Rule 13, CPC for setting aside ex parte decree in a Title (D) Suit No. 25 of 2002. This application was dismissed on 6.5.2015, against which the petitioner preferred Civil Misc. Appeal No. 6 of 2015. The appellate Court, after recording a finding that the order dismissing application under Order IX, Rule 13, CPC does not suffer from any defect, dismissed the appeal preferred by the petitioner. It appears that the petitioner has filed Civil Misc. Case No. 06 of 2016 under Section 114 read with Order XLVII, Rule 1 read with Section 151, CPC for review of order dated 10.2.2016 passed in Civil Misc. Case No. 06 of 2015, which was dismissed on 3.5.2016.

(3.) The learned counsel for the petitioner referring to decision in Prakash Chander Manchanda and another v. Janki Manchanda. reported in AIR 1987 SC 42 and Rajendra Prasad @ Rajendra Pd. Agrawal v. Sheo Narayan Singh, reported in 2005 (1) BLJR 713 submits that the trial Court as well as the appellate Court have erroneously held that the application under Order IX, Rule 13, CPC was not maintainable. The learned counsel for the respondent, however, contends that on merits the petitioner has failed to demonstrate that application under Order IX, Rule 13, CPC has substance. The learned counsel points out that in his application the petitioner has disclosed his disability on account of some ailment for the period between 2002 to 2010, however, he has not shown sufficient cause for not appearing in the suit after 2010, which was decreed on 8.8.2013.