- (1.)Being aggrieved by order dated 10.12.2010 passed by XII Additional District Judge, Indore in Misc. Appeal No.03/2009 whereby order dated 27.11.2009 passed in MJC No. 02/2009 by II Civil Judge, Class 2, Indore whereby the application filed by the respondent No. 1 u/order 9 rule 13 CPC for setting aside ex parte decree dated 08.09.2007 passed in CS No.273A/2006 was dismissed, was set aside, present petition has been filed.
(2.)Short facts of the case are that a suit for eviction was filed by the respondent No.2 against respondent No.1 on 15.12.2006 wherein it was alleged that respondent No. 1 is the tenant of the respondent No.2 @ 450/-per month. It was alleged that decree of eviction be passed against respondent No.1 under Section 12(1)(c) and (f) of the Madhya Pradesh Accommodation Control Act (for short, "the Act"). Suit proceeded ex parte against respondent No. 1 vide order dated 3.2.2007. After recording of evidence, ex parte decree was passed on 18.09.2007 in favour of the petitioner whereby the respondent No. 1 directed to be evicted from the suit accommodation on the grounds available under Section 1(1)(c) and (f) of the Act. In compliance of the ex parte decree dated 18.09.2007, an execution Petition was filed by the respondent No.2 on 14.12.2007 in which possession was taken by respondent No.2 on 6.4.2008 from respondent No.1 through Court. Thereafter, on 7.4.2008 an application was filed by the respondent No. 1 u/o IX r. 13 CPC which was registered as MJC No.02/2009. After holding summary enquiry application was dismissed vide order 27.11.2009 against which an appeal was filed by the respondent No. 1 which was numbered as 03/2009 and was allowed vide order dated 10.12.2010 whereby order dated 27.11.2009 and judgment dated 18.9.2007 was set aside and the case was remanded to the leaned trial Court to decide the suit on merits. Being aggrieved by the impugned order, present petition has been filed.
(3.)Leaned counsel for the petitioner argued at length and submits that petitioner examined two process servers to demonstrate that respondent No. 1 was duly served. It is submitted that, again one more process server was examined to demonstrate that in execution case also respondent No. 1 was duly served. It is submitted that the evidence which was relied upon by the learned trial Court was completely ignored by the learned appellate Court while allowing the appeal. Learned counsel submits that learned appellate Court also ignored the proviso of Order 9 r. 13 CPC.