RSA No. 1272 of 2005 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1272 of 2005 (O&M) Date of Decision: October 24 , 2009 Dilawar Singh (now deceased) through his LRs ...... Appellants Versus Ranbir Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Ashwani Bakshi, Advocate for the appellants. Mr.N.S.Sharma, Advocate for Mr. H.N.Sahu, Advocate for the respondents. **** ` Ajay Tewari, J. This appeal has been filed against the judgment of the learned lower Appellate Court reversing that of the trial court and thereby dismissing the suit of the plaintiff challenging the civil court decree dated 31.5.96 passed in C.S. No.201 of 1993 on the ground that the suit did not lie and only an application under Order IX Rule 13 CPC could have been filed. The following questions have been proposed:- i) Whether the judgment and decree dated 07.01.2005 passed by learned Addl. District Judge, Rohtak in instant case is against law and facts, findings recorded Teheran perverse and is liable to be set aside? RSA No. 1272 of 2005 (O&M) 2 ii)Whether a Civil Court seeking setting aside of an ex parte judgment and decree which was obtained by concealment of facts by a party is not maintainable? A perusal of Order IX rules that a complete mechanism has been provided for setting aside a decree which has been wrongly passed ex parte. In the circumstances the findings of the learned lower Appellate Court that the suit is not maintainable based as it is on the judgment of the Hon'ble Supreme Court in A.C.Ananthaswamy and others v. Boraiah (Ead) by LRs reported as 2004(2) HRR 490 are upheld. Consequently question No.(ii) has to be answered against the appellant. Once this question is held against the appellant and it is held that the suit was not maintainable this appeal would necessarily have to be dismissed without any reference to question No. (i) proposed. However, the dismissal of the suit and this appeal would not debar the appellant from moving an appropriate application under Order IX Rule 13 CPC even at this stage it would be decided by the court on its own merits and any finding on merits which may have been arrived at in the present suit would have no effect thereon. Since the main appeal has been dismissed, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE October 24, 2009 sunita RSA No. 1272 of 2005 (O&M) 3