Allahabad High Court
Jang Bahadur Singh vs Addl. District Judge, Court No. 3, ... on 21 October, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- MATTERS UNDER ARTICLE 227 No. - 4055 of 2022
Petitioner :- Jang Bahadur Singh
Respondent :- Addl. District Judge, Court No. 3, Sultanpur And Another
Counsel for Petitioner :- Bajrang Bahadur Singh
Hon'ble Abdul Moin,J.
Heard.
Instant petition has been filed challenging the orders dated 04.01.2022 passed by the learned Trial Court whereby the application filed by the respondent under Order 9 Rule 13 CPC has been allowed, a copy of which is annexure 7 to the petition. Also under challenge the order dated 09.09.2022 by which the revision filed by the petitioner against the said order has been rejected.
The case set forth by the petitioner is that a suit had been filed by the petitioner against the respondent for cancellation of the sale deed. The same was decreed ex-parte vide judgment and order dated 08.10.2021, a copy of which is annexure 5 to the petition. Subsequent thereto, the respondent filed an application under Order 9 Rule 13 CPC praying for recall of the said order. The objections were filed by the petitioner against the said application. However, learned Trial Court vide impugned order dated 04.01.2022 was of the view that it would be in the interest of justice that the ex-parte order dated 08.10.2021 be recalled and the case be decided on its merits. Being aggrieved, the revision filed by the petitioner has also been dismissed by the revisional Court vide order dated 09.09.2022 by giving a categoric finding in paragraph 8 (iii) that it cannot be safely concluded that the respondent had due information about the suit and deliberately did not appear before the Court.
The revisional Court is the final authority as regards the finding of fact. Both the learned Trial Court as well as the learned revisional Court were of the view that it would be in the interest of justice that the ex-parte judgment be recalled and the case be contested on its merits.
It is also settled proposition of law that suit should be decided on merits. (See:-Improvement Trust, Ludhiana vs Ujagar Singh and others reported in 2010 (28) LCD 1531).
Learned counsel for the petitioner has, however, placed reliance on a judgment of this Court in the case of Shiv Shankar Vs. Board of revenue reported in (2015) All Civil Journal 178. Obvisiously, the judgment of this Court would have to give way to the judgment of the Apex Court as already referred to above.
Learned counsel for the petitioner at this stage prays that he may be granted time to file a supplementary affidavit duly bringing on record the application filed by the respondents under Order 9 Rule 13. However, the Court is of the view that as the merits of the said application have already been discussed by the learned Trial Court as well as the revisional Court, as such, there is no occasion for the same to be brought on record. Accordingly, the said request is rejected.
This Court does not find any illegality with the aforesaid finding as have been recorded by both learned Trial Court as well as by the revisional Court more particularly keeping in view the judgment of the Apex Court in the case of Ujagar Singh (supra). Accordingly, the petition is dismissed.
Order Date :- 21.10.2022
Pachhere/-
