# Plaintiff v. M/s Accord Infrastructure Pvt. Ltd. and others

- **Citation:** (2011) 1 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-11
- **Bench:** Sunil Ambwani, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-m-s-accord-infrastructure-pvt-ltd-and-others-41807
- **Pages:** 8

## Headnote

Code of Civil Procedure-Order 39 rule 1Prayer for interim injunction refused by
Trail Court with specific finding that
inspite of recorded co-tenure holder out
of 3, two brother have sold their share to
the
Defendant-Plaintiff
allowed
the
deceleration for nature of land for non
agricultural purposed-never resisted the
sanction
of
map
by
development
authority-from
khasra-No
agriculture
activities found-even in relief no prayer
for restraining them to create third party
interest-held-Trail Court committed No
illegality
in
rejecting
injunction
Application.

Held: Para 17

In the present case the plaintiff has
neither pleaded nor shown that he was
exercising any ownership right on the
1 All] Sheoraj V. M/s Accord Infrastructure Pvt. Ltd. and others
135
land by cultivating it or otherwise. He did
not make any efforts inspite of execution
of the sale deeds in 2004, to get the
share partitioned by meets and bounds.
The plaintiff waited and watched the
defendants to use the property to file a
suit. In between he allowed the land to
be declared non-agricultural land and
the suit for partition to be dismissed on
the ground of jurisdiction of revenue
court.
He
also
did
not
object
to
measurements and inspections on which
the building plans were sanctioned. He
was not cared to obtain copies of
building plans to show as to whether the
entire land or only a part is proposed to
be developed. The delay on his part in
getting the property partitioned and
further in not claiming the relief in
partition of suit was rightly accepted as
a
ground
to
reject
the
relief
of
injunction.
Case law discussed:
(2010) 2 SCC 77, 1890 ILR 12 All 436, AIR
(38)
1951
All.
199,
Robert
Watson
Consolidation Officer V. Ram Chand Dutt, (18
Cal. 10 P.C.), AIR (11) 1924 P.C. 144, Tilok V.
Ramadin Select Case No. 270, Lalla Bissambur
Lal V. Rajaram 13 W.R. 337, 9 All. 661 (1887)
A.W.N. 253, 1890 ILR 12 All 436 (1890 AWN
95) FB, AIR 1984 SC 1789, (2008) 11 SCC 1,
(2009) 11 SCC 229, 2010 (2) SCC 77.

## Text

134 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
be
calculated
for
the
purpose
of
application of the provision of sub section
2 of section 167 of the Code.

9. Section 9 of the General Clauses
Act, 1897 speaks regarding method of
calculation of the period, which is
extracted below:-

"9.Commencement and termination
of time.- (1) In any [General Act] or
Regulation made after the commencement
of this Act, it shall be sufficient, for the
purpose of excluding the first in a series
of days or any other period of time, to use
the word "from", and , for the purpose of
including the last in a series of days or
any other period of time, to use the word
"or".

(2)This section applies also to all
[Central Acts] made after the third days
of January, 1868, and to all Regulations
made on or after the fourteenth day of
January, 1887."

10. In light of the aforesaid
provision it is obvious that first date in the
series of the days shall be excluded for the
purpose of calculation of 90 days.
Accordingly, in the present case the
period of 90 days commenced just from
the next date of remand i.e. w.e.f
21.10.2010 and from the said period 90
days completed on 18.1.2011, therefore,
till 18.1.2011 the revisionist was not
entitled to claim the benefit of the
provisions of section 167(2) of the Code .

11. Indisputedly, on 18.1.2011 the
charge-sheet was filed, therefore, I am of
the view that the charge-sheet was filed
within 90 days, therefore, the benefit of
provision of section 167(2) of the Code is
not available to the revisionist for
granting him bail. Thus I do not find error
in the order impugned .

12. The revision is dismissed. The
revisionist is at liberty to claim for bail on
different ground.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

First Appeal From Order No. 379 OF 2011

Sheoraj

 ...Appellant-Plaintiff
Versus
M/s Accord Infrastructure Pvt. Ltd. and
others

 ...Defendant-Respondents

Counsel for the Appellant:
Sri S.O.P. Agarwal

Counsel for the Respondents:
Sri Anoop Trivedi
Sri Shashi Nandan

Code of Civil Procedure-Order 39 rule 1Prayer for interim injunction refused by
Trail Court with specific finding that
inspite of recorded co-tenure holder out
of 3, two brother have sold their share to
the
Defendant-Plaintiff
allowed
the
deceleration for nature of land for non
agricultural purposed-never resisted the
sanction
of
map
by
development
authority-from
khasra-No
agriculture
activities found-even in relief no prayer
for restraining them to create third party
interest-held-Trail Court committed No
illegality
in
rejecting
injunction
Application.

Held: Para 17

In the present case the plaintiff has
neither pleaded nor shown that he was
exercising any ownership right on the
1 All] Sheoraj V. M/s Accord Infrastructure Pvt. Ltd. and others
135
land by cultivating it or otherwise. He did
not make any efforts inspite of execution
of the sale deeds in 2004, to get the
share partitioned by meets and bounds.
The plaintiff waited and watched the
defendants to use the property to file a
suit. In between he allowed the land to
be declared non-agricultural land and
the suit for partition to be dismissed on
the ground of jurisdiction of revenue
court.
He
also
did
not
object
to
measurements and inspections on which
the building plans were sanctioned. He
was not cared to obtain copies of
building plans to show as to whether the
entire land or only a part is proposed to
be developed. The delay on his part in
getting the property partitioned and
further in not claiming the relief in
partition of suit was rightly accepted as
a
ground
to
reject
the
relief
of
injunction.
Case law discussed:
(2010) 2 SCC 77, 1890 ILR 12 All 436, AIR
(38)
1951
All.
199,
Robert
Watson
Consolidation Officer V. Ram Chand Dutt, (18
Cal. 10 P.C.), AIR (11) 1924 P.C. 144, Tilok V.
Ramadin Select Case No. 270, Lalla Bissambur
Lal V. Rajaram 13 W.R. 337, 9 All. 661 (1887)
A.W.N. 253, 1890 ILR 12 All 436 (1890 AWN
95) FB, AIR 1984 SC 1789, (2008) 11 SCC 1,
(2009) 11 SCC 229, 2010 (2) SCC 77.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri S.O.P.
Agarwal for the plaintiff-appellant. Shri
Shashi Nandan assisted by Shri Anoop
Trivedi appears for the defendantrespondents.

2. This First Appeal From Order
arises out of an order passed by the Civil
Judge (Senior Division) Ghaziabad dated
24.12.2010 in OS No. 2343 of 2010
Sheoraj vs. M/s Accord Infrastructure
Pvt. Ltd. rejecting the application for
interim injunction, after hearing the
parties.

3. The plaintiff-appellant has filed
an Original Suit No. 2343 of 2010, for
permanent injunction restraining the
defendants-respondents to construct road
or building, taking exclusive possession
and for interfering in the joint possession
and use of the land in Khasra No. 292
area 0.2780 hec. and plot No. 274 area
0.2530 hec. in village Mahrauli Pargana
Dasna, Tehsil and District Ghaziabad.

4. It is alleged in the plaint that the
plaintiff
along
with
his
brothers
Bhagwant Singh and Satveer Singh were
the joint owners and in possession of the
property. His brothers have sold their
two-third share to defendant nos. 1 to 3.
There has been no partition in the family
between the brothers and that the
property continues to be in joint
possession
of
the
plaintiff
and
defendants. They have no right to take
possession or raise constructions on any
part of the property exclusively. The
defendant company keeps changing its
name from time to time. It is a powerful
company
with
means
to
raise
constructions.
On
30.10.2010
they
brought and have kept the construction
materials on the eastern portion of plot
No. 292, and that their labourers started
raising constructions of the pucca road
and the building. When they were
stopped from raising constructions, the
defendants threatened the plaintiff. The
defendants want to raise constructions
and to stop the passage of the drains for
irrigation. They
are threatening to
occupy a specific portion of the land and
to make constructions on it.

5. The defendants-respondents filed
objections alleging that they are reputed
builders engaged in constructions of
residential and commercial buildings in
136 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
and around Ghaziabad. They have
purchased one third portion of 0.2530
hect. in Khata No. 335, Khasra No. 292
by sale deeds dated 29.7.2004 and
4.6.2004 from Bhagwant Singh and are
in possession of the land purchased by
them. Their name has been mutated in
the revenue records and they are in
possession thereof. The company has got
the building plan sanctioned from the
Ghaziabad
Development
Authority,
Ghaziabad after Ghaziabad Development
Authority verified the revenue records
and the possession of the defendants on
the spot. The maps were sanctioned on
1.4.2010, after which the defendants
have started constructions on the portion
of the land purchased by them in
accordance with the law. If the plaintiff
alleged that there is no partition, the suit
filed by them only for injunction without
claiming partition is barred by the
provisions of Sections 34, 38 and 41 of
the Specific Relief Act. The defendants
will suffer irreparable loss and injury, if
any injunction is issued restraining them
from making constructions.

6. The trial court, while deciding
application for interim injunction, has
found that it is not denied that the land
was own jointly by the three brothers and
that two of the brothers have sold the
land to the defendants. The plaintiff has
not disclosed the dates of the sale deeds.
In the objections, it is stated that the sale
deeds were executed in the year 2004.
The defendant is a builder and has
purchased the land for raising the
constructions. There is nothing to show
that since 2004 the plaintiff has been in
joint possession with the defendants or
has sown and harvested any crops over
the land. The trial court prima facie
found that on the spot the brothers had
partitioned the land. A suit for partition
was also filed by the defendants which
was pending in the revenue courts. The
Khatauni (record of title) shows that no
crops were shown on the land and thus
the
plaintiff
will
not
suffer
any
irreparable injury. The trial court also
found that the plaintiff has not prayed for
relief of partition and has filed the suit
only for permanent injunction. The land
has been declared as non-agricultural
land and for construction the map has
been sanctioned by the Ghaziabad
Development
Authority.
In
the
circumstances
the
balance
of
convenience lies in favour of the
defendants and that if injunction is
granted, the scheme for construction will
suffer.

7. Shri S.O.P. Agrawal, learned
counsel for the petitioner submits that it
was not necessary for the plaintiff to
claim a relief for partition. The suit for
partition filed by the defendants was
dismissed on the ground that the revenue
courts after declaration of land as nonagricultural
land,
did
not
have
jurisdiction to entertain the suit. He
submits that so far the land has not been
partitioned. It is in joint ownership of
plaintiff and defendants. The defendant
is not entitled to usurp the land for its
own benefits and to make constructions.
He submits that unless there is a partition
by meets and bounce no co-owner has a
right to utilise the land for its benefits.
The raising of constructions will cause
irreparable loss as third party right may
also be created. He relies upon the
principles of law for grant of temporary
injunction laid down in Narendra Kante
vs. Anuradha Kante & others (2010) 2
SCC 77, in support of his submission.
1 All] Sheoraj V. M/s Accord Infrastructure Pvt. Ltd. and others
137

8. In the present case the sale deeds
were executed by the brothers of the
plaintiff in the year 2004. The land was
thereafter declared as non-agricultural
land and the building's plan were
approved by the Ghaziabad Development
Authority. There is no pleading or
material on record to show that the
plaintiff was in physical possession of
the land, or had sown any crops. The
plaintiff has not pleaded any such facts
or produced documents to establish the
use of his ownership's rights. There are
no pleadings or any proof of any
agricultural operations carried out by the
plaintiff on the land.

9. Prima facie we do not find any
error in the findings of the trial court.
The plaintiff was aware of the sale of
two-third portion by his brothers in
favour of defendants. He did not choose
to get the land partitioned or exercise any
proprietary rights. He has waited for six
years until the defendants got the
building plan sanctioned and started
making constructions.

10. More than a century ago, it was
laid down in Shadi v. Anup Singh 1890
ILR 12 All 436 that the Court will grant
a perpetual injunction to restrain one of
the other co-sharers from appropriating
to himself land in which each of his cosharers has an interest and from building
upon it; and if he proceeded to build
upon it the Court would grant mandatory
injunction directing that the building so
far as it has proceeded be pulled down.
In the later decision no such broad
proposition was accepted.

11. In Chhedi Lal v. Chhotey Lal
AIR (38) 1951 All. 199 Justice Ghulam
Hasan speaking for the Division Bench
after
citing
Robert
Watson
Consolidation Officer. v. Ram Chand
Dutt, (18 Cal. 10 P.C.) by Sir Barues
Peacock;
Midnapur
Zamindary
Consolidation Officer. Ltd. v. Naresh
Narayan Roy, AIR (11) 1924 P.C. 144;
Tilok v. Ramadhin Select Case No. 270
, by Mr. Spankie, ACJ; Lalla Bissambur
Lal v. Rajaram 13 W.R. 337, a decision
by Mahmood, J in Paras Ram v. Sherjit
9 All. 661 (1887) A.W.N. 253 and
another Full Bench decision of FiveJudges by Mahmood, J in Shadi v. Anup
Singh 1890 ILR 12 All 436 (1890 AWN
95) FB held as follows:-

"(25). As a result of the foregoing
discussion, it appears to us that the
question of the right of co-sharers in
respect of joint land should be kept
separate
and
distinct
from
the
question as to what relief should be
granted to a co-sharer, whose right in
respect of joint land has been invaded
by the other co-sharers-either by
exclusively
appropriating
and
cultivating
land
or
by
raising
constructions thereon. The conflict in
some of the decisions has apparently
risen from the confusion of the two
distinct matters. While therefore a cosharer is entitled to object to another cosharer exclusively appropriating land to
himself to the detriment of other cosharers the question as to what relief
should be granted to the plaintiff in the
event of the invasion of his rights will
depend upon the circumstances of each
case. The right to the relief for
demolition and injunction will be granted
or withheld by the Court according as the
circumstances established in the case
justify. The Court may feel persuaded
to grant both the reliefs if the evidence
establishes that the plaintiff cannot be
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
adequately compensated at the time of
the partition and that greater injury
will result to him by the refusal of the
relief than by granting it. On the
contrary if material and substantial injury
will be caused to the defendant by the
granting of the relief, the Court will no
doubt be exercising proper discretion in
withholding such relief. As has been
pointed out in some of the cases, each
case will be decided upon its own
peculiar facts and it will be left to the
Court to exercise its discretion upon
proof of circumstances showing which
side the balance of convenience lies.
That the Court in the exercise of its
discretion
will
be
guided
by
considerations of justice, equity and
good conscience cannot be overlooked
and it is not possible for the Court to lay
down an inflexible rule as to the
circumstances in which the relief for
demolition and injunction should be
granted or refused."

12. It would also be relevant here to
quote the observations of Mahmood, J in
Paras Ram vs. Sherjit 9 All. 661 (1887
AWN 253) as follows:-

"(14) The cases of the Allahabad
High Court on the point are far more
numerous. Paras Ram v. Sherjit, 9 All.
661: (1887 A.W.N. 253) is a decision by
Mahmood J. in a case where a co-owner
sought
demolition
of
a
building
constructed by a joint owner in spite of
his protest. The learned Judge observed
that as a pure question of law as
distinguished from the rules of equity the
plaintiffs may be entitled to the decree
but
Courts
in
India
exercise
the
combined jurisdiction of law and equity
and cannot disregard equitable doctrines
in enforcing remedies. He distinguished
cases in which a building is erected by
a rank trespasser upon a land of
another and cases in which the
building
is
erected
by
a
joint
proprietor on joint land without the
permission of his joint owners or in
spite of their protest. The learned Judge
then quotes the well-known judgments of
Sir Barnes Peacock in Biswambhar Lal
v. Raja Ram, 3 Beng. L.R. (App) 67: (13
W.R. 337) and concludes that when a
joint owner of land, without obtaining
the permission of his co-owners, builds
upon such land, such buildings should
not be demolished at the instance of such
co-owners, unless they prove that the
action of their joint owner in building
upon joint land had caused them a
material and substantial injury such as
cannot be remedied by partition of the
joint land. This case was considered by a
Full Bench of five Judges including
Mahmood J. in Shadi v. Anup Singh, 12
All. 436: (1890 A.W.N. 95 F.B.). The
suit was brought for an injunction within
three or four days of the defendant
commencing a construction upon joint
land. The defendant asserted exclusive
right to the land. The plaintiff obtained
an interim injunction but the District
Judge on appeal, in view of the ruling in
Paras Ram's case, 9 All. 661: (1887
A.W.N. 253) went into the question as to
whether
the
plaintiff
could
be
compensated
by
the
defendant
at
partition. He found that the defendant
was building upon land which was in
excess of the share which would come to
him on partition and the plaintiff could
not,
therefore,
be
adequately
compensated. Sir John Edge C.J. Held
that the District Judge was wrong in
going into the question whether the
excess land had been appropriated and
that finding of fact given by him the
1 All] Sheoraj V. M/s Accord Infrastructure Pvt. Ltd. and others
139
injunction should have been granted. It is
obvious from a reading of the judgment
in Paras Ram's case, 9 All. 661: (1887
A.W.N. 253) that it did not justify an
investigation into the question whether
more land than belonged to the co-sharer
was appropriated. The learned Chief
Justice observed that the defendant,
instead of going to the partition Court,
proceeded to appropriate to himself lands
in which each of his co-sharers had an
interest and thus he proposed to exclude
them from all use and enjoyment of a
portion of common land. He went on to
say:

"We need not in this case consider
what a civil Court should do if the
defendant has erected at great expense
buildings which a Court of equity might
hesitate to order him to pull down."

This observation clearly saves the
power of the Court under S. 55, Specific
Relief Act, as a Court of equity to
regulate its discretion in accordance with
the provisions of that section in granting
or withholding injunction."

13. In Ayyaswami Gounder vs.
Munnuswami Gounder AIR 1984 SC
1789 the Supreme Court held that where
an owner of land obstructs another coowner from using the land even when the
use causes no injury or detriment to him,
an injunction can be granted against the
obstructing owner. The only restriction
could by law on the in user of land by a
co-owner is that it should not be so used
as to pre-judicially affect or put the other
co-owner to a detriment. In paragraph
10, and 11, it was observed:-

"10. We find considerable force in
this contention. In the absence of any
specific pleading regarding prejudice or
detriment to the defendants-respondents
the plaintiffs have every right to use the
common land and the common channel.
The plaintiffs-appellants were claiming
their right on the basis of admitted coownership
rights
which
includes
unrestricted user, unlimited in point of
disposition, and the High Court was not
justified in holding that that plaintiffs'
right to take water was not acquired by
any
grant
from
the
defendantsrespondents or from any other sale deed.
The right of co-ownership presupposes a
bundle of rights which has been lost
sight of by the High Court.

11. The only restriction put by law
on the common user of land by a coowner is that it should not be so used as
to prejudicially affect or put the other coowner to a detriment."

14. In Mandali Ranganna and
others vs. T. Ramachandra and others
(2008) 11 SCC 1 the Supreme Court
held in paras 21 and 22 as follows:-

21.
While
considering
an
application for grant of injunction, the
Court
will
not
only
take
into
consideration the basic elements in
relation thereto, viz., existence of a
prima facie case, balance of convenience
and irreparable injury, it must also take
into consideration the conduct of the
parties.

22. Grant of injunction is an
equitable relief. A person who had kept
quiet for a long time and allowed another
to deal with the properties exclusively,
ordinarily would not be entitled to an
order of injunction. The Court will not
interfere only because the property is a
140 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
very valuable one. We are not however,
oblivious of the fact that grant or refusal
of injunction has serious consequence
depending upon the nature thereof. The
Courts dealing with such matters must
make all endeavours to protect the
interest of the parties. For the said
purpose, application of mind on the part
of the Courts is imperative. Contentions
raised by the parties must be determined
objectively."

15. The judgement in Mandali
Ranganna (supra )was followed in
Kishorsinh
Ratansinh
Jadeja
vs.
Maruti Corporation and others (2009)
11 SCC 229 and in Narendra Kante vs.
Anuradha Kante and others 2010 (2)
SCC 77. In all these cases the interim
injunction was refused. In Kishorsinh
Ratansinh Jadeja (supra) the Supreme
Court did not favour the grant of
injunction, affecting rights of third
parties. There were 280 transferees to
whom some portion of land was already
sold. It was held that if the owners of the
property
remain
restrained
from
developing the same, it is they who will
suffer severe prejudice, as they will be
deprived of the benefit of the user of
their land during the said period. The
balance
of
convenience
and
inconvenience is against the grant of
such an injunction. In Narendra Kant
(supra) the High Court had in a Misc.
Appeal observed that in case injunction
was granted, it would be the defendants
who will suffer irreparable loss and
injury. It was observed that defendant no.
10 (the transferee from respondentdefendant no. 1 and 2) had acquired a
right to the suit property. He was
therefore
allowed
to
carry
out
construction activities over the disputed
land but was restrained from alienating
or transferring the property in question or
from creating any third party rights
during the pendency of the civil suit. The
trial court was directed to decide the suit
expeditiously, and to dispose of the same
within six months. The Supreme Court
did not interfere with the order except by
directing that the co-sharers to the suit
property shall not create any third party
right or encumber or transfer their
respective suit property in any manner
and all transactions undertaken in respect
thereof shall be subject to the final
decision in the suit.

16. Every co-sharer has a right to
the property and to develop the property
in accordance with the law, subject to the
condition that such use of the property
will not render the partition impossible.
Either the plaintiff may file a suit for
partition and injunction, or may bring
such facts and circumstances to the
notice of the Court that the activities
carried out by the defendants will make
the partition impossible. In either case
the delay in filing the suit will not entitle
the plaintiff to seek the relief of
injunction.

17. In the present case the plaintiff
has neither pleaded nor shown that he
was exercising any ownership right on
the land by cultivating it or otherwise.
He did not make any efforts inspite of
execution of the sale deeds in 2004, to
get the share partitioned by meets and
bounds. The plaintiff waited and watched
the defendants to use the property to file
a suit. In between he allowed the land to
be declared non-agricultural land and the
suit for partition to be dismissed on the
ground of jurisdiction of revenue court.
He also did not object to measurements
and inspections on which the building
1 All] Vidya Sagar and others V. Additional District Judge, Court No.2, Lucknow and others 141
plans were sanctioned. He was not cared
to obtain copies of building plans to
show as to whether the entire land or
only a part is proposed to be developed.
The delay on his part in getting the
property partitioned and further in not
claiming the relief in partition of suit was
rightly accepted as a ground to reject the
relief of injunction.

18. The pleadings in the plaint
clearly show that the building material
has been accumulated on only a part
(eastern) of the plot namely Khasra No.
292 and that some labourers had started
laying down the road. The activity of the
defendants did not amount to usurping
the entire land which may defeat the
rights of the plaintiffs on partition.

19. The plaintiff did not claim any
relief either in the plaint or in the
injunction application to restrain the
defendants from creating third party
rights over the land, nor there was any
such contention made by the counsel for
plaintiff-appellant.

20. For the aforesaid reasons, we do
not find that the trial court committed
any error of facts and law in rejecting the
injunction application.

21. The First Appeal From Order is
dismissed, with observations that the suit
may be decided expeditiously.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Misc. Single No. - 510 of 2006

Vidya Sagar and others ...Petitioners
Versus
Additional District Judge, Court No.2,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri Mohd. Arif Khan
Sri Mohiuddin Khan

Counsel for the Respondents:
Sri M.A.Khan
Sri Rakesh Pandey
C.S.C.

Code of Civil Procedure-order 9 rule-13Application to recall ex parte Decreeallowed with condition to file written
statement by the date fixed-on adjourn
date neither defendant nor his counsel
appeared nor written statement filedcourt decided suit ex parte-application
under order 9 rule 13 rejected on
premises when suit decided under order
VIII
Rule
10-application
not
maintainable held-totally misconceivedneither the petitioner precluded the Trail
Court to examine the witnesses, nor the
Trail
Court
followed
the
procedure
prescribed
under
law-suit
decreed
outrightly
in
absence
of
petitionerclearly came within the ambit of order 9
rule
13-order
Set-a-side-subject
to
payment of cost.

Held: Para 19

It is also relevant to mention that the
impugned judgment dated 3.1.1994 was
passed for default of appearance of the
petitioners and by not even examining
the evidence, if any, on behalf of the
respondent.
The
requirement
under