Bramha Kumar vs Ramratan

N.K. Mody, J.

Being aggrieved by the order dated 25-6-2004 passed by VIII Civil Judge Class-I, Indore in MJC No. 23/2004 whereby the application filed by the respondent under Order 9, Rule 13, CPC for setting aside the ex parte decree dated 12-7-2002 passed in civil suit No. 23-A/96 was allowed, the present petition has been filed.

Short facts of the case are that the petitioner filed a suit for eviction u/s 12 of the M. P. Accommodation Control Act against the respondent which was registered as civil suit No. 23-A/96 and it was decreed ex parte. After passing the ex parte decree, appellant moved an application under Order 9, Rule 13, CPC for setting aside the ex parte decree which was allowed by the order dated 26-2-2004. Learned counsel for appellant submits that the order is illegal and deserves to be set aside.

It is submitted that on the date of evidence i.e. 8-7-2002 when the case was fixed for recording of the evidence of the appellant who was plaintiff before the Court below, the counsel for the respondent was present and prayed for adjournment. When the adjournment was refused then the counsel disassociated with the case. Therefore, the application filed under Order 9, Rule 13, CPC itself was not maintainable.

Smt. Chaphekar, learned counsel for petitioner placed reliance on a decision reported in AIR 1980 Andhra Pradesh 129, Ramineni Suryanarayana, wherein Single Bench of the High Court of Andhra Pradesh has held that presence of defendant's counsel amounts to presence of defendant for the purposes of Order 17, Rule 3, CPC and the application to set aside decree under Order 9, Rule 13, CPC is not maintainable. C. R. No. 458 of 2004 decided on 12-8-2005. (Indore)

Shri N. K. Dave, learned counsel for respondent placed reliance on a decision reported in Rama Rao and Others Vs. Shantibai and Others, , wherein the Full Bench of this Court has held that if the counsel feels a necessity to seek adjournment so that he may prepare himself and, on his own, seeks adjournment, it will be no appearance of the party and Rule 2 of Order 17, CPC alone would be attracted.

Since the application filed under Order 9, Rule 13, CPC has been allowed by the Court below therefore, without going into merits of the case, this petition is disposed of with a short direction that the learned Court below where the suit is pending, shall dispose of the suit at the earliest preferably within a period of 4 months. The parties are directed to remain present before the Court below on 12-9-2005.

With the aforesaid direction, the petition stands disposed of. C.C. as per rules.