MD. KAMALUDDIN Vs. MD. JAMALUDDIN

JUDGEMENT

(1.) The petitioner, defendant in Title (Partition) Suit No.77 of 2008, is aggrieved of order dated 13.07.2017 by which application under Order 9, Rule 7 Civil Procedure Code has been declined.

(2.) Title (Partition) Suit No.77 of 2008 was instituted for a decree for partition of schedule-A properties to the extent of half share for the plaintiff in the said property. The suit was instituted on 08.05.2008 and report on valid service of summons upon the defendant was received, a fact duly recorded in the order dated 16.03.2009. Thereafter, by an order dated 06.07.2009 the suit was set for ex-parte hearing. The petitioner admits that he appeared in the suit on 20.09.2011 and filed an application seeking leave to file written-statement. This application was never pressed by the defendant and in the meantime plaintiff's evidence was closed on 06.09.2013. About more than two years thereafter, an application under Order 9, Rule 7 Civil Procedure Code was filed by the defendant on 01.04.2016 for recall of ex-parte order dated 06.07.2009.

(3.) Mr. Jitendra Kumar Pasari, the learned counsel for the petitioner states that on account of default by the conducting lawyer, who is mainly practicing on criminal side, the petitioner could not take necessary steps in the matter and, therefore, an opportunity may be granted to the petitioner to contest the suit on merits.