- (1.) BY means of this writ petition the petitioner has challenged? the order of the court below by which application under Order IX Rule 13 CPC has been allowed against which appeal was filed.
(2.) THE appeal has also been rejected. THE claim of the petitioner is that a suit for declaration? and permanent injunction was filed being Suit No. 40 of 2006. It is claimed that the Process Server has served notice upon the respondents. However, when they did not contest the matter, the suit was decreed ex parte? vide order dated 16.2.2008. It is also claimed that after a year an application under Order IX Rule 13 CPC was filed for recalling the ex parte decree. The court below issued notice on the aforesaid application and invited objection. The petitioner filed objection before the court below. However, the? application filed by the defendants? was allowed holding therein that the notice has not properly been served against which? revision was filed. The revisional court has also upheld the order of the court below and dismissed the revision vide order dated 14.7.2011 which has resulted in filing of the present writ petition. I have considered the submissions made by? Sri Ranjit Saxena, learned counsel for the petitioner and the learned counsel appearing? for the respondents. The court below has recorded a categorical? finding that the summons were not duly served upon the defendants? and by imposing cost, has allowed the application.? It is submitted by the learned counsel for the respondents that the cost has also been accepted by the plaintiff.
(3.) THE fact remains that the suit has remained uncontested? and it is settled principle of law? that merely by default on account of one of the parties, its valuable right cannot be taken away. Of course, it will have to seen whether the default is a bona fide default or it is deliberate attempt? to avoid notice.? THE findings recorded by both the courts below that the notice has not been duly served, in my view, the said suit needs to be contested on merits? as the suit has been filed for declaration of title? and permanent injunction. Under these circumstances, I find no error in the orders impugned which may merit any further consideration by this Court. Learned counsel for the petitioner has submitted? that the said suit itself be decided? expeditiously. Such a direction cannot be given by this Court in view of the Division Bench? judgment of this Court in Km. Shobha Bose Vs. Judge Small Causes and others 2010 (1) ADJ 531 (DB).;