- (1.) SHASHI Kant Gupta, J. This is a writ petition for quashing the im pugned orders dated 13. 1. 2005 passed by respondent No. 1, and 10. 2. 2004 and 10. 9. 1996, passed by respondent No. 2.
(2.) THE factual background in a nut-shell as follows : THE respondent No. 3 (hereinafter referred to as 'landlord') filed a S. C. C. Suit No. 3 of 1987 against the petitioner No. 1 and his father for recovery of arrears of rent and enactment on the ground that the landlord is owner of the property in dispute and was in the tenancy of petitioner No. 1 @ 312. 50 per month and the petitioner No. 1 neither paid rent nor electric dues etc. , since 1. 8. 1986. The plaintiff landlord also impleaded father of the petitioner No. 1 as defendant in the suit who died during the pendency of suit and his legal heirs were brought on record. The suit was contested by the petitioner and the other legal heirs of his father. In the said suit, evidence of the parties was recorded and the case was fixed for argument but the defendant absented himself/and the suit was heard and decreed ex parte vide judgment and decree dated 10. 9. 1996 against the peti tioners for arrears of rent and ejectment only. The petitioners No. 2 to 5 moved an application on 17. 1. 1997 under Order IX, Rule 13, C. P. C. arraying petitioners No. 1 (Noor Mohd.) and landlord as respondents, which was registered as Misc. Case No. 5 of 1997 and they also field objections on 25. 1. 1997 under section 47, C. P. C. which was registered as Misc. Case No. 3 of 1997. Both the Misc. cases were dismissed in default on 24. 10. 998. The landlord has filed both the afore said applications before this Court as Annexure C. A.-l and C. A.-2 along with the counter-affidavit.
(3.) AFTER the rejection of the applications of petitioner Nos. 2 to 5 under Order IX, Rule 13, C. P. C. , petitioner No. 1 thereafter filed an application un der Order IX, Rule 13'of C. P. C. for setting aside ex parte decree dated 10. 9. 1996 on 3. 12. 1999, after the expiry of more than three years wherein it was alleged that after the evidence of the parties was closed, the matter was fixed for ar gument but his Counsel did not inform him about the development of the case, as such he could not know about ex parte hearing. It was only on 1. 11. 1999, he came to know about ex parte decree when he was asked by the plaintiff to va cate the shop. He immediately thereafter contacted his Counsel on 2. 12. 1999, who moved an application for inspection of the record on the next date i. e. , 3. 12. 1999. Learned Counsel inspected the record and moved an application on 3. 12. 1999 for recalling the ex parte judgment and decree. The Trial Court vide order dated 10. 8. 2004 dismissed the restoration application of the petitioner No. 1. Thereafter Revision No. 6 of 2004 was filed against the rejection of restoration application and the said revision was also dismissed by First Additional District Judge, Raebareli. Hence this writ petition. Learned Counsel for the petitioner has stated that evidence of both the parties were recorded by the Court below, therefore, in view of Order XVII, Rule 2, C. P. C. , the Trial Court was bound to pass the order on the merits after considering the evidences, pleading of the contesting parties. The Trial Court has passed the decree without discussing the averments made in the written statement and the evidence of the petitioners and so, according to learned Counsel for the petitioner the decree has been passed in utter disregard to the provision of Order XVII, Rule 2, C. P. C. , as a result the impugned judgment and decree passed by the Trial Court is non-est, void and without jurisdiction.;