// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.7274/2008 Keshar Devi W/o late Shri Naryan Lal and Others Versus District & Sessions Judge, Jaipur District, Jaipur and Others Date of Order ::: 31.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Arun Bhandari, Counsel for petitioners #### By the Court:- Heard learned counsel for the petitioners. The plaintiff-petitioners filed a suit for declaration and permanent injunction, which was decreed ex-parte. Thereafter an application was moved on behalf of the defendants for setting-aside the ex-parte decree under Order 9 Rule 13 CPC, which was dismissed. Being aggrieved with the same, an appeal was preferred by the defendants. The learned counsel for the plaintiff, who appeared before the first appellate court, gave his consent that the appeal, challenging the order of the trial court rejecting the application under Order 9 Rule 13 CPC, be allowed on payment of heavy costs. The first appellate court, on the // 2 // basis of concession given by the learned counsel for the plaintiff set-aside the order of the trial court. Consequently, the ex-parte decree was also set-aside on payment of costs of Rs.3,000/-. The matter was relating to the year 1995, therefore, the first appellate court also directed the trial court to decide the suit within a period of three months. The learned counsel for the petitioners contended that the concession was not given by their counsel before the first appellate court, however, he admits that he has not filed any affidavit of his Advocate who gave his consent before the first appellate court. In absence of any affidavit of the learned counsel, who gave his consent before the first appellate court, the submission of the learned counsel for the petitioners cannot be appreciated. It is also relevant to mention that in case no consent was given on behalf of the plaintiff, then better course for him would have been to file a review petition before the same court. This is a matter where the ex-parte decree has been set-aside by the first appellate court vide impugned order dated 1st July, 2008. There is no illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same. // 3 // There is no merit in this writ petition and the same is accordingly dismissed. (Narendra Kumar Jain) J. //Jaiman//