High Court of Judicature at Allahabad
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Mahatam Singh And Another v. District Judge, Mau And Others � - WRIT - C No. 7040 of 2006  RD-AH 2714 (6 February 2006)
Hon'ble Umeshwar Pandey, J.
Heard learned counsel for the petitioners.
This petition has been moved against the order dated 23.01.2006 whereby the court below has allowed the appeal of the defendant and thus set aside the exparte decree passed against him in Original Suit No. 32 of 1998.
The respondent No. 3 defendant in the suit had absented during the proceeding and therefore, the suit was ordered to proceed exparte. In the meantime the plaintiffs moved an application of amendment for incorporating a new relief in alternative for refund of the money paid by him at the time of execution of the impugned agreement. Copy of this application was not provided to the counsel for the respondents defendants and it was allowed. Thereafter also no notice of the amended plaint was given to the defendant and subsequently the suit was decreed exparte only for the relief which was subsequently introduced in the plaint by way of amendment. The lower appellate court on this ground has found that when the notice of this amendment is given to the defendant and an exparte decree for the amended relief has been granted by the court below, it was extremely illegal and unjustifiable. It is on this ground that the appeal of defendant respondents was allowed and the exparte decree has been set aside.
I do not find any infirmity or otherwise illegality in the appellate order and therefore, this petition under Article 226 of Constitution of India, will not be treated as maintainable. This petition having no force is hereby dismissed.
It is however, observed that the court below will take up the proceeding in the suit expeditiously and disposed it of at the earliest.
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