Ajay Kumar Mittal, J. - (1.) THE defendants -petitioners are aggrieved by order dated 24.3.2008 passed by the trial court which was upheld by the appellate court vide order dated 4.9.2009 declining to accept the application filed by them under Order 9 Rule 13 of the Code of Civil Procedure (in short "the Code") for setting aside the ex parte order dated 2.11.2000 and ex parte decree dated 20.11.2003. Put shortly, the facts necessary for adjudication as narrated in the petition are that plaintiff -respondent No. 1 filed a suit for declaration to the effect that he was owner in possession of the property in dispute. In the said suit, the defendants -petitioners were proceeded against ex parte and ex parte decree was passed, against them. Thereafter, the defendants filed an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree. The trial court vide order dated 24.3.2008 dismissed the said application filed by the defendants. Feeling aggrieved, the defendants filed an appeal against the order dated 24.3.2008. The appellate court vide order dated 4.9.2009 dismissed the appeal. Hence, the present revision petition.
(2.) I have heard learned counsel for the parties. Learned counsel for the petitioners submitted that the defendants had entered into a compromise with the plaintiff -respondent No. 1 on 24.2.1998 and it was on account of the said compromise that they had considered that the suit shall be decided in terms thereof. The ex parte proceedings and decree followed as plaintiff or his counsel had not appeared. He further submitted that the delay in filing the application could not be a ground for rejecting the application. He placed reliance on the judgments of the Hon'ble Supreme Court in Bhagmal and others v. Kunwar Lal and others, 1 : A.I.R. 2010 S.C. 2991 :(2010) 12 S.C.C. 159 and Bombay High Court in Lachhiram Chudiwala (HUF) v. Bank of Rajasthan Limited, 2, 2007(5) R.C.R. (Civil) 420. It was next contended that the findings recorded by the courts below were perverse and this Court is competent to exercise revisional jurisdiction under Article 227 of the Constitution of India. In support thereof, he had placed reliance upon the judgment of this Court in Mohinder Singh and another v. Mohinder Singh and others, 3 ( : 2008)152 P.L.R. 786. It was also urged that it was the negligence on the part of the counsel for which they could not be held responsible in view of the Apex Court judgment in G.P. Srivastava v. R.K. Raizada and others, 4 : (2000)3 S.C.C. 54.
(3.) CONTROVERTING the aforesaid submissions, learned counsel for the plaintiff -respondent No. 1 submitted that the defendants -petitioners had put in appearance in the trial court and filed the written statement and it was thereafter on 2.11.2000 that they were proceeded against ex parte . It was further submitted that thereafter counsel for the defendants -petitioners also appeared on 10.10.2002 and had sought time to file an application for setting aside the ex parte proceedings for which the case was adjourned to 14.11.2002. After that no one had appeared on the next date or thereafter and as such ex parte decree was passed on 20.11.2003. Even the application was filed on 20.4.2004 after the expiry of more than four months. It was gross negligence on the part of the defendants -petitioners who did not participate in the litigation and abusing the process of the Court, had filed an application for setting aside the ex parte judgment and decree. He also submitted that though there were talks of compromise but no formal compromise had been entered into between the parties and it was necessary for the defendants -petitioners to have proved the same by producing cogent evidence rather than dropping the proceedings in between.;