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Judgment
With the consent of Learned Counsel appearing for the parties, the appeal is heard finally.
The instant appeal has been preferred against the order dated 8.4.2022 (Annexure A1) passed by the 7th Additional District Judge, Durg in Civil M.J.C. No.83 of 2018, whereby the application filed by the Appellant/defendant under Order 9 Rule 13 of the Code of Civil Procedure for restoration of Civil Suit No.79B of 2016 has been dismissed and ex parte decree passed against him has been affirmed.
The Respondent/plaintiff filed a suit, being Civil Suit No.79B of 2016 against the Appellant/defendant for recovery of Rs.1,65,100. The Respondent/plaintiff pleaded that due to good relation between him and the Appellant/defendant, the Appellant/defendant obtained a sum of Rs.1,00,000 from him on 8.2.2006 and again obtained Rs.30,000 from him on 9.3.2006. On both the occasions, the Appellant/defendant assured him for repayment of the borrowed amount, but he did not repay the amount. In the suit, the Appellant/ defendant remained ex parte and an ex parte decree was passed in favour of the Respondent/plaintiff. Being aggrieved by the ex parte decree, the Appellant/defendant filed an application under Order 9 Rule 13 CPC for restoration of the civil suit to its original number, which has been dismissed vide the impugned order dated 8.4.2022. Hence, this appeal by the Appellant/defendant.
Learned Counsel appearing for the Appellant/defendant submits that the Appellant/defendant is an old person aged about 75 years and is suffering from various diseases. Due to his illness, he could not appear before the Trial Court. Therefore, Learned Counsel prays that as a mercy the Appellant/defendant may be granted an opportunity to appear before the Trial Court and contest his case.
Learned Counsel appearing for the Respondent/plaintiff opposes the arguments raised on behalf of the Appellant/defendant and submits that despite service of notice, the Appellant/defendant did not appear before the Trial Court and no sufficient cause has been shown for his non-appearance. Therefore, the Trial Court has rightly rejected his application.
I have heard Learned Counsel appearing for the parties and perused the impugned order and other material available with due care.
Considering the facts and circumstances of the case, particularly, that the Appellant/defendant is aged about 75 years and is suffering from various old age complications and diseases, it would be appropriate to afford him an opportunity as a mercy. Accordingly, subject to deposit of a cost of Rs.10,000 (Ten Thousand) by the Appellant/defendant before the Trial Court on 18.7.2022, the impugned order dated 8.4.2022 (Annexure A1) is set aside and Civil Suit No.79B of 2016 is restored to its original number. Both the parties shall positively appear before the Trial Court on 18.7.2022. The cost of Rs.10,000 to be deposited by the Appellant/ defendant shall be paid to the Respondent/plaintiff immediately after the deposit.
With the aforesaid directions, the instant appeal is disposed of. Lower Court records be sent back along with a copy of this order immediately.