Anand Pathak, J. - (1.)The present civil revision under Section 115 of CPC has been preferred against the order dated 19/8/2016 passed by the 10th Additional District Judge, Gwalior in Civil Appeal No. 1/2016; whereby, the order dated 21/11/2015, passed by 3rd Civil Judge, Class-I, Gwalior; whereby, the application preferred by the petitioner under Order IX Rule 13 CPC has been rejected, has been affirmed.
(2.)Precisely stated facts of the case as per revision memo are that petitioner has purchased the suit property from one Khachhuram admeasuring 1950 sq. ft. for consideration of Rs. 1,05,000/-. Khachchuram was survived by two daughters namely Savitri and Narayani. Sister of Khacchuram Smt. Kunti raised the dispute over the suit property, therefore, the petitioner had to file the suit against Kunti and her son Kailash for declaration and permanent injunction. Document of receipt which was executed by Kachhuram was also submitted and injunction decree was passed against Kunti and Kailash. In that civil suit, receipt dated 12/1/1989 was declared to be inadmissible in evidence and thereafter when the appeal was preferred, appellate Court vide judgment and decree dated 22/12/2010 held the possession of the petitioner as permissive possession. This judgment and decree attained finality qua Kunti and her son Kailash. Thereafter, daughters of Khachchuram, Smt. Savitri and Narayani, filed a suit stating that petitioner is tenant in suit property and he be evicted from the suit premises. The suit was filed on 2nd February, 2012 in which summons were issued for service of respondents by making the same returnable by 10/2/12. On 9/2/2012, as per the bailiff report, notice was served to the defendants and defendants refused to receive the notice. On 14/2/2012, again notice was issued by making the same returnable on 22/2/2012. On 17/2/2012, again Bailiff made a report that as defendants refused to receive the notice, therefore, notice was affixed on the door of defendants' house. On 22/2/2012, the trial Court on the basis of report made by the Bailiff, proceeded ex-parte against the present petitioner and on 11/4/2012, ex parte judgment and decree was passed by the trial Court.
(3.)On 29/7/2012, it appears that in pursuance to judgment and decree passed by trial court on 11/4/2012, execution proceedings were filed by the decree holder and on 29/7/2012 itself plaintiffs took the possession of the defendant (present petitioner). Thereafter, it appear that petitioner filed an application on 13/8/2012 under Order IX Rule 13 CPC for setting aside the ex parte judgment and decree, in which the petitioner was cross-examined by the plaintiff and in rebuttal, respondents have sworn affidavit under Order XVIII Rule 4 CPC but did not appear before the trial Court.