Smt. Nan Bai Sahu vs Man Mohan Singh

Anil Sharma, J.—Case is listed for final disposal at motion stage. Arguments heard.

This appeal under Order 43 Rule 1(r) of the CPC has been filed by the appellants/defendants against the order dated 28/08/2009 passed in unregistered MJC by which application filed under Order 9 Rule 13 read with section 151 CPC for setting aside ex-parte judgment and decree dated 18.07.2007 has been dismissed by the learned lower appellate court.

Appellants had filed an application before the trial court on the ground that they do not have knowledge of ex-parte judgment and decree dated 18.7.2007 passed against them. The respondents in their written reply before the trial court have submitted that the appellants were having full knowledge of the case and the case was fixed for evidence. Learned trial court has rejected the application by holding that appellant Ashok Kumar Pandey and his counsel Shri Mahendra Singh Thakur, are resident of Panagar and they usually meet each other and the counsel Shri Mahendra Singh Thakur has admitted that he had personally told the son of Ashok Kumar Pandey on 15.3.2007 and 16.3.2007 about the date fixed in the case for evidence but they did not make any contact with the counsel. This fact has also been considered by the learned trial court that after intimation given by the counsel that the appellant should have met him before 19.03.2007 but they did not meet him nor make contact with the counsel. Learned trial court has disbelieved the reasons assigned for condoning the delay in filing the application under Order 9 Rule 13 CPC.

Learned counsel for the respondents has cited judgments of this court passed in the matter of Javed Khan Vs. Avtar Singh, in which it has been held that application for setting aside ex-parte decree was not submitted within the prescribed period of 30 days from the date of ex parte decree, no sufficient cause for absence was shown. No interference in the order dismissing the application for restoration under Order 9 Rule 13 CPC is made out. On similar points, learned counsel has also cited two others judgments passed in the matter of Hari Ram Keer Vs. State Bank of India, and Balram and others Vs. Devkinandan and others, .

Learned counsel for the appellant has cited judgments of this court passed in the matter of Mani Bai Vs. Avinash Jamidar and others, ; Asharam and Others Vs. Smt. Gangabai and Others, and Indermal Monnat Vs. Shambhulal Patidar, in which it has been held that liberal view be taken for allowing the application filed for condonation of delay. In the present case, the appellants were having full knowledge of the date on which they were required to produce evidence which was adjourned on their requests and they had not appeared before the trial court for producing evidence in spite of intimation given by their counsel not only once but twice, even after judgment they did not try to make contact with their counsel who was living in the same village Panagar. Therefore, looking to the negligence on the part of appellants, learned trial court is fully justified in passing the impugned order. Therefore, no interference in the impugned order is required. Hence, the appeal is dismissed.