Pankaj Naqvi, J. - (1.) HEARD Sri Mahesh Chandra Joshi, learned Counsel for the applicant. This is a plaintiffs' revision, against an order dated 16.5.1995, passed by VIIth Addl. District Judge, Aligarh in Misc. Case No. 90 of 1991, whereby application, filed by the defendant/O.P. for setting aside an ex parte decree under Order IX, R.13, C.P.C. read with section 17 of the Provincial Small Causes Courts' Act, has been allowed.
(2.) THE revisionist/plaintiff filed a suit for rent and ejectment and in the suit, 11.9.1991 was the date fixed. Subsequently, case stood transferred to the Court of VIIth Addl. District Judge, Aligarh, wherein 7.10.1991 was the date fixed. The next date fixed was 14.11.1991, for ex parte hearing. On 16.11.1991, the suit was decreed ex parte. The case of the defendant in the recall application was that, no notice of the aforesaid transfer was given to him; since 9.11.1991, his father was unwell and was suffering from Asthma and doctor concerned had advised him complete rest and that there was none in his family except him who was attending his father, to attend the proceedings of the Court and to attend the case from 12.11.1991 to 16.11.1991.
(3.) OBJECTIONS were filed by the revisionist/plaintiff to the recall application, wherein it was stated that alongwith summons of the suit, copy of the plaint was served upon the tenant and in token thereof the tenant had also appended his signatures. It was further stated that the summon stood served on 20.7.1991 and no written statement was filed and thereafter, on 11.9.1991, was the date fixed and subsequently, summons were again served on 18.9.1991. It further stated that tenant had been granted five opportunities to file his written statement but he did not do so. However, it stated that in compliance to ex parte decree dated 16.11.1991, the tenant deposited the decretal amount of Rs. 9,845.75 paisa, but not mesne profits for the period 5.11.1991 to 21.11.1991, and thus the restoration is liable to be dismissed.;