Rajasthan High Court - Jaipur
Prem Singh vs Kanhiya on 22 January, 2014
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL REVISION PETITION NO.67/10. PREM SINGH PETITIONER. VS KANHAIYA RESPONDENT. DATE OF JUDGMENT : 22ND JANUARY,2014. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. J.P. Goyal for the petitioner. None for the respondent. ORDER BY THE COURT :
1. The present revision petition has been filed by the petitioner-plaintiff under Section 115 of CPC challenging the order dated 21.12.09 passed by the Civil Judge, (JD), Bharatpur (hereinafter referred to as 'the trial court') in Civil Misc. Case No. 130/08, whereby the trial court has allowed the application of the respondent-defendant filed under Order IX Rule 13 of CPC for setting aside the ex-parte decree dated 15.12.07 passed in the Civil Suit No. 296/07.
2. In the instant case it appears that the petitioner-plaintiff had filed the suit seeking declaration to the effect that the adoption of the respondent by Shri Kishan Lal vide the adoption deed dated 9.6.04 was null and void. The said suit was decreed ex-parte vide the decree dated 15.12.07. The respondent having come to know about the said decree had filed an application under Order IX Rule 13 of CPC for setting aside the said ex-parte decree on the ground that he was not properly served with the summons. The trial court allowed the said application of the respondent and set aside the ex-parte decree, vide the impugned order dated 21.12.09. Being aggrieved by the said order, the petitioner has preferred the present revision petition.
3. It is submitted by the learned counsel Mr. J.P. Goyal for the petitioner that though the respondent was duly served with the summons in the suit, he did not appear and therefore the decree was passed against him ex-parte. According to him the trial court has committed an error by setting aside the said decree on the ground that the respondent was not duly served.
4. In the instant case it appears that the trial court has set aside the ex-parte decree passed in the suit against the respondent on the ground that the provisions contained in Order V Rule 17 of CPC was not duly complied with while serving the respondent. The learned counsel for the petitioner has failed to point out as to how the respondent was duly served as per the provisions contained in Order V Rule 17 of CPC. Even otherwise, the impugned order having been passed in December, 2009 and there being no stay of the operation of the said order granted by this court, the trial court has already proceeded further with the recording of evidence and, therefore, no useful purpose would be served in interfering with the impugned order.
5. In that view of the matter, the petition being devoid of merits is dismissed.
(BELA M. TRIVEDI) J.
MRG.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
M.R. Gidwani PS-cum-JW