Smt. Santosh Kanwar vs Smt. Birju Kanwar And Anr
2022 Latest Caselaw 6289 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S. B. Civil Revision Petition No. 53/2018

Smt. Santosh Kanwar W/o Shri Mangal Singh, By caste Rajput, Resident of Village - Bhakariwala, Tehsil - Rohat, District - Pali Rajasthan.

----Petitioner

Versus

1. Smt. Birju Kanwar W/o Shri Shivnath Singh, By caste Rajput, Resident of Village - Bhakariwala, Tehsil - Rohat, District - Pali (Rajasthan)

2. Shri Hanuman Singh S/o Shri Ladu Singh, By caste Rajput, Resident of Village - Bhakariwala, Tehsil - Rohat, District - Pali (Rajasthan)

----Respondents

For Petitioner(s) : Mr. Shambhoo Singh For Respondent(s) : Mr. Hanwant Singh Balot through VC

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

28/04/2022

The instant civil revision petition under Section 115 of the

Code of Civil Procedure, 1908 has been preferred by the plaintiff-

petitioner against the Order dated 19.04.2012 passed by the Civil

Judge (Junior Division), Pali in Civil Misc. Case No. 80/2010 (Birju

Kanwar & anr. Vs. Smt. Santosh Kanwar), whereby the application

under Order IX, Rule 13 read with Section 151 of C.P.C. filed by

the defendants-respondents was allowed and while setting aside

ex-parte Judgment and Decree dated 11.02.2010 passed in Civil

(2 of 3) [CR-53/2018]

Original Suit No. 91/2009 (Santosh Kanwar Vs. Birju Kanwar &

anr.), the suit was ordered to be restored on its original number.

In the above suit proceedings, defendants and their advocate

remained absent on 25.01.2010, whereupon ex-parte proceedings

were initiated and after adducing evidence, suit for injunction filed

by the plaintiff-petitioner was decreed on 11.02.2010. Aggrieved

with ex-parte decree, defendants-respondents filed the application

under Order IX, Rule 13 read with Section 151 of C.P.C. alleging

that their absence was bonafide. After hearing both the parties,

trial court found that defendants cannot be punished for any

mistake on the part of their advocate. The trial court further held

that the advocates were on strike on 25.01.2010, 06.02.2010 &

11.02.2010; the reason for absence of defendants was bonafide.

Hence, the trial court allowed the application under Order IX, Rule

13 of C.P.C. filed by the defendants-respondents, against which

this revision petition has been filed on the grounds that averments

made in the application under Order IX, Rule 13 of C.P.C. are

false; the trial court exceeded its jurisdiction in allowing the

application; no explanation was furnished in the applicant under

Section 5 of the Limitation Act for delay occasioned in filing the

application. It was further contended that the trial court

committed material irregularity and illegality in allowing the

application and setting aside ex-parte decree.

Heard learned counsel for the parties and perused the

material available on record.

In the considered opinion of this Court, looking to the

reasons for setting aside ex-parte decree, no illegality has been

committed by the trial court in allowing the application under

Order IX, Rule 13 of C.P.C. The order impugned passed by the

(3 of 3) [CR-53/2018]

trial court is perfectly correct. The present revision petition has

been filed without any basis. This Court finds that there is no

substance in this revision petition.

Dismissed accordingly.

(RAMESHWAR VYAS),J

28-Inder/-

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