BALWANT RAI Vs. MOHAN LAL
LAWS(J&K)-2006-11-39
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 14,2006

BALWANT RAI Appellant
VERSUS
MOHAN LAL Respondents

JUDGEMENT

- (1.) THESE two Civil Revisions arise out of 2nd Additional District Judge Jammus order dated 28.4.2004 whereby two applications filed by herein petitioner Balwant Rai seeking setting aside of decrees passed in File No. 19/Civil and 20/Civil on 23rd November 2003 had been sought to be set aside.
(2.) FACTS giving rise to these two Revision Petitions are these: - Mohan Lal respondent filed two suits under Order XXXVII of the Code of Civil Procedure Samvat 1977 against Balwant Rai seeking recovery of an amount of Rs. one lakh in each suit. These suits were registered as Civil Suit No. 19 and Civil Suit No.20 by learned 2nd Additional District Judge, Jammu. Pursuant to issuance of requisite notice under Order XXXVII of the Code, petitioner -defendant entered appearance within the statutory period of 10 (ten) days. Petitioner -defendant filed applications in the two suits seeking leave to defend the suits saying inter -alia that neither any money transaction was there between the parties nor had the defendant executed or signed the Hundi. Petitioner -defendant had stated in the applications that the respondent had filed a suit against the defendant -petitioner and his father titled Mohan Lal vs. Balwant Rai and another in the court of First Additional Munsiff, Jammu wherein he had mentioned that he had to recover an amount of Rs. 4, 50,000/ - from the petitioner -defendant. The petitioner says that he had kept Hundies with one Arun Kumar from where the plaintiff -respondent had got those Hundies so as to launch false suits against the petitioner. It was stated by the petitioner in the petitions that he had liquidated the amount received from Arun Kumar and Mohan Lal. The petitioner had specifically denied his signatures on the receipt and Hundi on which the plaintiff had filed the suits. As regards the plea of the respondent -plaintiff that the petitioner had admitted and acknowledged before the Notary that his thumb impression and signatures were there on the Hundies and receipt, the petitioner says that neither had any Notary come to him nor had he admitted his signatures or thumb impression on any document before the Notary.
(3.) AFTER the filing of this application by the petitioner before the trial court, the case appears to have proceeded on a snails pace allowing adjournments to the parties on mere asking. It appears that the petitioner -defendant was not present on 13.02.2002 when the trial court proceeded exparte and adjourned the case to 26.02.2002. The defendant, however, filed an application for setting aside exparte proceedings and appeared on the adjourned date. It further appears from the records that rather than deciding the application of the petitioner -defendant seeking leave to defend, the suit, the trial court by a composite order, rejected the application for setting aside exparte proceedings holding that such application was not maintainable. The trial court accordingly decreed the two suits on 23.11.2002. The petitioner thereafter filed applications on 24th of December 2002 seeking setting aside of decrees passed by the learned 2nd Additional District Judge Jammu in File Nos. 19/Civil and 20/Civil. These two applications were dismissed by learned 2nd District Judge, Jammu on 28.04.2004 holding that as decrees under Order XXXVII of the Code of Civil Procedure were not exparte decrees so the applications did not warrant consideration. It was, however, noticed in this order of learned 2nd Additional District Judge, Jammu that the then Presiding Officer of the court of 2nd Additional District Judge, Jammu had not passed any orders on the applications of the petitioner whereby he had sought leave to defend the suit.;


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