1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.3797 of 2006. State of Rajasthan through Superintendent Garden, PWD, Kota VERSUS The President, Tamoli Samaj, Nanadevi Mataji-ka-Mandir,Mandir Trust, Kota & Another Date of Order :::: 13/08/2009 Hon'ble Mr. Justice Dalip Singh Mr. Hari Bareth, Dy. Govt. Counsel for the Petitioner Mr. Rajvir Sharma, Counsel for the Respondents Per Court : Heard learned counsel for the parties. The present writ petition has been filed by the plaintiff-petitioner against the order dated 09.01.2006 passed by the learned Additional Civil Judge (Junior Division) No.3, Kota (North), whereby the miscellaneous appeal filed by the defendant-non-petitioner against the order dismissing the application under Order 9 Rule 13, C.P.C. was allowed and the ex-parte decree dated 18.07.2003 has been set aside. The learned counsel for the petitioner has submitted that the learned Appellate Court has set aside the judgment of 2 the learned trial Court and allowed the application merely on the ground that it is necessary in the interest of justice to afford an opportunity to the defendant to contest the suit on merits. The aforesaid application was allowed on the payment of costs of Rs.1000/-. I have considered the judgment of the learned Appellate Court. While it is correct that the learned Appellate Court has allowed the appeal and set aside the judgment of the learned trial Court rejecting the application under Order 9 Rule 13, C.P.C. This Court in the writ jurisdiction would ordinarily not like to interfere with the discretion exercised by the learned Appellate Court while allowing the application for setting aside the ex-parte decree and directing that the suit be heard on merits while affording an opportunity to the parties to adjudicate the matter on merits. I am of the view that the learned Appellate Court had the jurisdiction to allow the appeal and the appeal having been allowed, this Court in the writ jurisdiction would ordinarily not like to substitute its findings on the fact in issue substituting the findings of the learned Appellate Court in the writ jurisdiction under Articles 226 and 227 of the Constitution of India. 3 I do not find any jurisdictional error having been committed by the learned Court below in the impugned judgment. Accordingly, this writ petition is dismissed. The parties are directed to appear before the learned trial Court on 28.08.2009 on which date the defendant shall file his written-statement, if not already filed, along with the costs, which has been imposed by the learned Appellate Court, if the same has not been paid already. No further time would be allowed by the learned trial Court to the defendant in this behalf. (Dalip Singh) J. ashok/