IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 217 of 2007 (M/S) [ Shailendra Singh S/o Sri Bachan Singh R/o Lalpur, Tehsil Kichha District Udham Singh Nagar. ...…………. Petitioner Versus 1. District Judge, Udham Singh Nagar. 2. II, Addl. Civil Judge (J.D.), Rudrapur, District Udham Singh Nagar. 3. Bachan Singh S/o Sri Dayal Singh R/o Lalpur, Tehsil Kichha, District Udham Singh Nagar. ...………… Respondents Mr. S.K. Mandal, Advocate for the petitioner. Mr. Pradeep Joshi, Advocate for respondent No. 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioner has challenged the order dated 28.10.2005, passed by II Addl. Civil Judge (Junior Division), Rudrapur, in Misc. Case No. 03 of 2005, and order dated 15.03.2007, passed by the District Judge, Udham Singh Nagar, in Misc. Civil Appeal No. 53 of 2006, whereby the order passed by the trial court is affirmed. 2 2) Heard learned counsel for the petitioner. 3) It appears that a Suit No. 95 of 1997 is instituted by the plaintiff / respondent No. 3, against the petitioner for injunction, which was being contested by the petitioner through his counsel. After the suit was listed for final hearing on 05.12.2001, for two years the defendant took adjournments. Thereafter, the suit was transferred from the court of Civil Judge (Junior Division), Rudrapur to the court of Addl. Civil Judge (Junior Division), Rudrapur. There also the petitioner (defendant) was represented in said transferee court through his counsel Mr. Rakesh Saxena, Advocate and Mr. Sahid Hussain, Advocate. They appeared before said court to which the suit was transferred. However, one of the counsel made a request to the court to issue fresh summons to the party on 26.08.2004, which was rejected by the trial court. Since, the parties were represented through their counsel and not only the evidence of plaintiff but also evidence of D.W. 1 Abdul Wazid on behalf of defendant No. 1 (present petitioner) had already recorded, the trial court decided the suit on merits, but mentioned ‘ex parte’ in the operative portion of the order. In such a case, no application under Order IX Rule 13 of the Code of Civil Procedure, was maintainable as the party was already represented through his counsel. Even otherwise, the ground for absence was not found sufficient by the trial court and that is how the application under Order IX Rule 13 of 3 the Code of Civil Procedure was dismissed by the trial court vide impugned order dated 18.10.2005. The appellate court (District Judge, Udham Singh Nagar) before whom the Misc. Civil Appeal No. 53 of 2006 was filed by the defendant No. 1 against rejection of application under Order IX Rule 13 of the Code of Civil Procedure, also heard the parties and concurred with the trial court, and dismissed the appeal. 4) Having considered submissions of learned counsel for the parties and after going through the impugned orders, this Court does not find any error of law committed by the trial court or by the appellate court. In the circumstances, this writ petition is devoid of merits and dismissed summarily. [ (Prafulla C. Pant, J.) [ Dt. October 09, 2009. H. Negi