SIDDHARTHA VARMA,J. - (1.) Heard, Sri P.C. Jain, learned counsel for the petitioners and Sri Surendra Kumar, learned counsel for the respondent.
(2.) While J.S.C.C. Suit No. 125 of 2002 seeking a decree of ejectment and recovery of arrears of rent was proceeding against the petitioners/defendants and evidence was being led, the petitioners/defendants on 9.3.2010 could not be present in the Court and opportunity for cross-examining the plaintiff's witnesses was closed and the Suit was, after hearing the plaintiff's counsel, decreed on 29.3.2010.
(3.) The applicant-petitioner filed an application under Order 9, Rule 13 of the C.P.C. for setting aside the ex parte judgment and decree dated 29.3.2010 which, however, was dismissed on 14.3.2011 saying that the application under Order 9, Rule 13 of the C.P.C. was not maintainable and the Revision filed against it was also dismissed on 31.8.2012. Aggrieved thereof the instant writ petition has been filed. The counsel for the petitioner submitted that under Order 17, Rule 2 of the C.P.C., if upon the absence of the defendants, the suit was disposed of then an application under Order 9, Rule 13 of the C.P.C. would lie and has relied upon AIR 1987 SC 42 : Prakash Chander Manchanda and another, v. Smt. Janki Manchanda. He has further stated that the Trial Court and the Revisional Court erred in dismissing the application of the petitioner as maintainable under Order 9, Rule 13 by saying that they had proceeded under Order 17, Rule 2 of the C.P.C. but had decided the case on the basis of the material before the Court which was produced by both the sides.;