Rattan Singh vs Pritam Singh

D.V. Sehgal, J.—This revision petition is directed against the judgment dated 28.4.1986 passed by the learned Additional District Judge, Gurdaspur, affirming that of Sub Judge 1st Class dated 27.3.85 dismissing an application for setting aside the ex parte judgment and decree dated 9.5.1984.

The facts in brief are that Pritam Singh Respondent No. 1 filed a suit against Rattan Singh Petitioner and Sukhwinder Singh Respondent No. 2 for recovery of damages on account of malicious prosecution. This suit was decreed by Shri D.S. Chhina, Sub Judge 1st Class, Gurdaspur on 9.5.1984. The Petitioner and Respondent No. 2 filed an application before the learned Sub Judge on 17.9.1984 under Order IX, Rule 13, Code of Civil Procedure, for setting aside the judgment and decree dated 9.5.1984. This application was dismissed by the learned Sub Judge vide order dated 27.3.1985. As already mentioned above, an appeal filed against the aforesaid order by the Petitioner and Respondent No. 2 was dismissed by the learned Additional District Judge vide order under revision.

At the stage of motion hearing, the Petitioner was required to deposit decretal amount of Rs. 5000/-. On his making the said deposit the revision petition was admitted on 11.3.87. The learned Counsel for the Petitioner submits that by depositing the amount of Rs. 5000/- he has already established his bona fides and, therefore, the ex-parte decree should be set aside and should be allowed to contest the suit on merits. The matter is however, not that simple as would be revealed from the sequence of the suit set out below.

Notice of the suit was issued by the learned trial Court to the Petitioner and Respondent No. 2.They jointly put in appearance through their counsel Shri B.S. Gill Advocate and filed their written statement. Issue arising out of the pleadings were duly framed. Respondent No. 1 produced his evidence in support of the claim in suit. The witnesses produced by him were cross-examined at length by the learned Counsel appearing on behalf of the Petitioner and Respondent No. 2.Respondent No. 1 ultimately closed his case. When the state for producing evidence by the Petitioner and Respondent No. 2 as Defendants in the suit came they failed to produce the same despite opportunities granted by the learned Sub Judge. Ultimately their evidence was closed by an order of the Court under Order XVII, Rule 3, Code of Civil procedure, because besides having failed to produce evidence they also did not pay the costs for adjournment imposed by the trial Court. As a result after appreciation of the evidence produced by Respondent No. 1 decree dated 9.5. 1984 was passed.

The Courts below have rightly held that the decree dated 9.5.1984 had been passed on merits and after contest by the Petitioner and Respondent No. 2. It could not therefore be treated as an ex parte decree. Therefore, an application under Order IX, Rule 13 CPC for setting aside the same was not maintainable. The only course open to the Petitioner was to file an appeal against the aforesaid decree u/s 96 CPC which course, however, he failed to adopt.

The learned Counsel for the Petitioner could not point out to me any jurisdictional error in orders passed by the learned Courts below. I, therefore, find no ground for interference with the same in the present revision which is consequently dismissed leaving the parties to bear their own costs.