RAM SURAT RAM (MAURYA), J. - (1.) Heard Sri Sanjay Singh for the petitioners and Sri T. A. Khan for the caveator.
(2.) This petition has been filed against the order of Additional District Judge dated 24.11.2015 by which the revision filed by respondent-2 has been allowed and the order of trial court dated 12.5.2014 was set aside.
(3.) Smt. Ladwati, respondent-2 filed a suit (registered as O.S.No. 76 of 2007) for specific performance of contract dated 18.8.2006 executed by Arvind in her favour. In the suit after service of summon, the defendant did not file written statement, thereafter trial court by order dated 20.9.2007 proceeded exparte against the defendant. Later on the defendant appeared before the court and filed an application for recall of the order dated 20.9.2007. The trial court by order dated 25.2.2010 allowed the application of defendant on the the cost of Rs. 800/- and granted time up to 9.3.2010 for filing written statement. On 9.3.2010 the defendant appeared but could not file written statement. The case was adjourned on 9.3.2010 and thereafter on 25.3.2010, 11.5.2010, 4.6.2010, 6.7.2010 and 20.7.2010. Although on these dates defendant appeared before the court below but he did not file any written statement. Thereafter the court proceeded exparte and by judgement dated 27.8.2011 decreed the suit exparte. Subsequently Arvind filed an application under Order 9, Rule 13 CPC on 1.4.2013 for setting aside the exparte decree dated 27.8.2011. It has been stated in the application as well as in the affidavit that due to inability, the defendant could neither deposit the cost of Rs. 800/- as imposed upon him by order dated 25.2.2010 nor he could file written statement. He could also not pay the advocate's fee as such the exparte decree dated 27.8.2011 is liable to be recalled. In the meantime, Arvind died on 7.8.2013 and his heirs were substituted. The trial court after hearing the parties by order dated 12.5.2014, although did not record any finding relating to not filing of written statement as well as absence of defendant on the date of decree dated 27.8.2011, but in view of giving liberty of hearing to the parties, set aside the exparte decree dated 27.8.2011 and restored the suit to its original number. Respondent-2 challenged the aforesaid order in revision (registered as Revision No. 38 of 2014). The revisional court after hearing the parties by order dated 24.11.2015 allowed the revision and set aside the order dated 12.5.2014. Hence this petition has been filed.;