Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8070 of 2018 Petitioner :- Mahaveer Singh Respondent :- Durgpal Singh And 05 Others Counsel for Petitioner :- Som Veer
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the orders of rejection of the application under Order IX Rule 13 passed by the courts below on 19.7.2012 and 19.2.2018. The said orders are being challenged on the ground that the petitioner/applicant had shown sufficient cause for recall of the exparte decree dated 24.3.2007. The recall application was filed within a short period on 19.4.2007 soon after the decree was passed exparte.
Considering these submissions of learned counsel for the petitioner, it would be relevant to note that the suit for specific performance of agreement was filed by the plaintiff on 10.7.1998. The petitioner, who is defendant in the suit, had received summons and was contesting the said suit.
When the matter had proceeded at the stage of evidence, the defendant had cross-examined the P.W. 3 on 31.3.2006 and, thereafter, he suddenly absented himself and on 24.3.2007, the exparte decree was passed.
The ground for recall of the exparte decree as indicated in the application dated 19.4.2007 is that the defendant was unable to contact his counsel on account of illness of his wife and his own illness between 31.3.2006 to 18.4.2007.
The court below has recorded a categorical finding of fact that no proof of illness of the defendant had been given for the period as narrated in the application for recall of the exparte decree.
Moreover, the defendant was well aware of the proceedings of the suit and had participated till the evidence of the plaintiff was concluded. Soon, thereafter, he absented himself deliberately so as to avoid and stall the proceedings of the suit. These findings of fact returned by the trial court has been affirmed by the first appellate court vide judgment and order dated 19.2.2018.
This Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India cannot interfere with the findings of fact returned by the courts below so as to take a different view from that has been taken by them on the basis of the material on record.
The present petition is, accordingly, dismissed.
Order Date :- 27.10.2018 Pratima