Gyanesh Kumar Gupta vs VIIth A.D.J. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This writ petition has been filed challenging the validity and correctness of the order dated 15.9.1999 whereby the revision has not only been allowed but ex parte decree dated 7.10.1997 was also set aside and dismissed the suit No. 1181 of 1979.

The brief facts of the case are that suit No. 1181 of 1979 was filed after issuance of notice dated 4.9.1978 which was replied by Respondent No. 3 on 26.10.1978. Subsequently, ex-parte decree was passed in favour of the Petitioner on 4.9.1993. On an application moved by the Respondent No. 3, the suit was restored for fresh hearing vide order dated 21.8.1996. However, Respondent No. 3 purposely and deliberately only with a purpose to delay proceeding kept making default and the suit was again directed to proceed ex-parte vide order dated 16.8.1997. Thereafter on 1.10.1997, an application for recall of the order dated 16.8.1997 by which suit was directed to proceed ex-parte, was moved under Order 9 Rule 7. The suit was again decreed ex parte on 7.10.1997 against the Respondent No. 3 and the application moved on behalf of the Respondent No. 3 on 26.8.1997 was rejected vide order dated 7.10.1997. Aggrieved by the said order, Respondent No. 3 filed revision before District Judge, Kanpur Nagar which was allowed by the impugned order dated 15.9.1999. Aggrieved by the order dated 15.9.1999, the Petitioner has filed this writ petition.

The impugned order has been assailed on the ground that the said order suffers from gross illegality, lack of jurisdiction, in as much as, the revisional court had no power to set aside the ex-parte decree and dismissing suit as well as by one stroke without taking into account the basic provisions contained in U.P. Act No. 13 of 1972. It has been argued by the learned Counsel for the Petitioner that the premises on which the revisional court has proceeded to pass the judgment is totally erroneous as the notice in question was perfectly valid and the contents thereof were not denied by the Respondent No. 3 in reply to notice

Per contra, learned Counsel for the Respondent No. 3 submits that he has no instruction in the matter though he has sent several letters to the Respondent No. 3, but there has been no response. Counter affidavit has also been not filed till date.

It appears that in the suit after filing written statement, Respondent No. 3 did not appear and in the revisional court proceedings he had also not appeared before the court.

In the circumstances, it is evident from the record that Respondent No. 3 by adopting dilatory tactics from the very beginning he is getting the case dismissed ex parte and thereafter challenging the order to continue his tenancy. The order impugned passed by the revisional court not only setting aside the ex parte judgment and decree in the suit but dismissed the suit itself without appreciating the evidence particularly when the matter was not perused by him in the suit as well as in the revision.

For all the reasons stated above and also in view of the fact that there is no contest from the Respondents side, the writ petition succeeds and is, accordingly, allowed. The order dated 15.9.1999 is set aside. No order as to costs.