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R. Singh v. Ivthe A.D.J. & Others - WRIT - C No. 8140 of 1988 [2007] RD-AH 12369 (19 July 2007)


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Court No.23

Civil Misc. Writ Petition No.8140 of 1988

Rulha Singh Vs. IVth Additional District and Sessions Judge, Saharanpur and others

Hon'ble S.U. Khan, J.

Heard Sri S.P. Singh, learned senior counsel assisted by Sri Jai Singh Parihar for the petitioner and Sri G.R. Prasad, learned holding brief of Sri R.K. Jain, learned senior counsel for the contesting respondents.

O.S. No.286 of 1985, Rulha Singh Vs. Isam Singh, was decreed ex parte on 18.02.1987 by Munsif Hawali, Saharanpur. On 18.02.1987, arguments on temporary injunction application were heard. Temporary injunction application was rejected and 24.02.1987 was fixed for final hearing of the suit. On 24.02.1987, no one appeared on behalf of the defendant, hence suit was directed to proceed ex parte. On that very date, plaintiff filed affidavit in support of his case. On that date, itself 25.02.1987 was fixed for delivery of judgment and on 25.02.1987, the suit was decreed ex parte. Thereafter, defendant filed application for setting aside the ex parte decree under Order 9 Rule 13, C.P.C. on 04.03.1987. The case of the defendant was that on 18.02.1987, after hearing on the temporary injunction application, the Court had reserved the order. The Trial Court, i.e. Munsif, Hawali, Saharanpur, allowed the restoration application, which had been registered as Misc. Case No.24 of 1987 on 03.04.1987. Against the said order, plaintiff-petitioner filed Civil Revision No.146 of 1987. The revision was dismissed by IVth A.D.J., Saharanpur on 05.04.1988, hence this writ petition.

The main argument raised by the learned counsel for the plaintiff-petitioner before the courts below as well as this Court is that on 18.02.1987, order was not reserved. In this regard, the objection of the plaintiff-petitioner himself was noticed by the Revisional Court. Petitioner stated that on 18.02.1987 in the presence of both the parties, the next date fixed was 19.02.1987.

In any case, even if there was some confusion on the part of the defendant, it was sufficient ground for setting aside ex parte decree. Restoration application had been filed within a week.

Accordingly, I do not find any error in the impugned orders, writ petition is therefore dismissed.




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