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Ram Krishna v. Mrs. Sonvati - WRIT - C No. 33571 of 2007 [2007] RD-AH 12936 (26 July 2007)


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                                                                                     Court No.6.

Civil Misc. Writ Petition No.  33571 of 2007.

Ram Krishna.                              Vs.       Smt. Sonvati.

Hon'ble Janardan Sahai, J.

          An application under Order 9 Rule 13 Civil Procedure Code was filed by the petitioner to set aside the ex parte decree dated 29.5.2004. The said application has been rejected by the trial court. The petitioner preferred an appeal, which too has been dismissed. The finding is that on 14.7.1999 an order was passed by the trial court directing the suit to proceed ex parte. That order was set aside on the application of the petitioner. Thereafter the petitioner absented and an order was passed on 8.1.2002 directing the suit to proceed ex parte. On the petitioner's application the order was set aside on 9.7.2002. Thereafter several dates were fixed but the petitioner absented and order to proceed ex parte was passed. The petitioner absented on 29.4.2004, 12.5.2004, 22.5.2004, 26.5.2004 and 28.5.2004. The trial court then decreed the suit ex parte and on 29.5.2004. The explanation of the petitioner that there was understanding between him and the plaintiff that neither of them would appear and that the petitioner had gone on Tirth Yatra and when he returned in the end of June he came to know of the ex parte decree has not been believed. The appellate court found that there was no  material to indicate that there was any such understanding between the plaintiff and the petitioners. The petitioner's case that he came to know about the ex parte decree when he returned after Tirth Yatra in the end of June has not been believed. The appellate court found that the petitioner had rather executed a sale deed on 30.6.2004, which shows that he was present in the village on that date and must have been present there since before to settle the transaction.

             Counsel for the petitioner relied upon a decision of the Apex Court in  Tea Auction Ltd. Vs. Grace Hill Tea Industry and another  2006 (2) C.R.C. 491 in support of his contention that the previous conduct of the parties has not to be seen. In the present case the order does not rest merely on the previous conduct of the petitioner. His explanation has been considered and has not been found to be acceptable. The case cited has therefore no application. No ground for interference has been made out. Dismissed.

Dt. 26.7.2007.



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