Awadh Nath Pandey vs Jai Kishun
2014 Latest Caselaw 4151 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 

 
Case :- WRIT - C No. - 40949 of 2014
 

 
Petitioner :- Awadh Nath Pandey
 
Respondent :- Jai Kishun
 
Counsel for Petitioner :- Anil Kumar Mishra
 

 
Hon'ble Abhinava Upadhya,J.

The petitioner had filed a suit  for ejectment and arrears of rent being Suit No. 355 of 2004 before the Civil Judge (Junior Division), Robertsganj, District Sonebhadra. In the said suit written statement etc. were filed. But in spite of notice  the defendant is not participating  in the proceedings  and, therefore, an order was passed  on 12.9.2007 to proceed ex parte.

It is claimed that the defendant, who is the tenant of the same house in which the plaintiff also resides  and it is submitted that the tenant was always aware of the proceedings  before the court  below. The plainitff also informed about the ex parte decree to the defendant yet no action was taken. Therefore, execution case was instituted being Execution Case No. 2 of 2011 and summons were issued  and served upon the defendant  on 8.3.2011, yet nobody appeared. However, on 26.4.2011 an application under Order IX Rule 13 CPC was filed  and without assigning any cogent reason as to why the defendant is not participating in the proceeding,  the trial court allowed the application against which revision was filed  and the revision was also dismissed. The revisional court,  without going into the questions as to inspite of knowledge  and notice on the defendant, he is not participating in the suit deliberately , rejected the revision, although the petitioner is in possession of the valid decree. It is submitted that under Rule 13 of Order IX unless the court is satisfied  that the defendant was prevented by any  sufficient cause from appearing when the suit was called  on for hearing, ought not to have recalled the said decree.

The matter requires consideration.

Issue notice to the respondents returnable at an early date.

 Learned counsel for the petitioner will take steps for service of notice upon the respondents within a week. 

List after service of notice.

Till the next date of listing, the further proceedings  in Suit No. 355 of 2004 (Awadh Nath Pandey Vs. Jai  Kishun) pending before the Civil Judge (Junior Division), Robertsganj, District Sonebhadra shall remain stayed.

Order Date :- 7.8.2014

SKM