TARUN AGARWALA, J. - (1.) HEARD the learned counsel for the petitioner, Sri K.K. Arora, assisted by Sri R.K. Garg learned counsel for the caveator and the learned Standing Counsel for contesting respondents No. 1 and 3.
(2.) THE petitioner and Devki Nandan Bansal were partners of a firm and consequently on an application moved by the partners of the firm, the registration of the firm was amended by the assessing authority and the name of the petitioner was removed from the partnership of the firm. This order of the assessing authority was appealable and an appeal was filed by the petitioner before the appellate authority which was rejected. Thereafter, a Second Appeal was preferred by the petitioner before the Trade Tax Tribunal, which was also dismissed and consequently a Trade Tax Revision was filed under Section 11 of the U.P. Trade Tax Act before High Court, where the matter is presently pending. Notwithstanding, the aforesaid recourse taken by the petitioner, a suit was filed before Civil Court for a declaration praying that the order of the assessing authority amending the certificate of the registration was a void order. It transpires that the suit proceeded ex parte against the Trade Tax Authorities and eventually, it was decreed ex parte. Upon coming to know of the ex parte decree, the Trade Tax Authorities filed an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as C.P.C.) praying that the ex parte decree may' be set aside. The petitioner filed his objections and, eventually the Trial Court, after considering the matter, rejected the application under Order IX, Rule 13 of the C.P.C. The Trade Tax Authorities being aggrieved, filed an appeal, which was allowed by an order dated 18.8.2008. The petitioner, who is plaintiff, being aggrieved by the said order, has filed the present writ petition.
(3.) LEARNED counsel for the petitioner submitted that the order of the appellate Court allowing the application under Order IX, Rule 13 is patently misconceived since the Trade Tax Authority had knowledge of the suit and deliberately chose not to appear and, therefore, the order of the appellate Court allowing the appeal is wholly illegal and that the application under Order IX, Rule 13 of the C.P.C. was liable to be rejected.;