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Judgment
The present appeal has been preferred under Section 96 of the Code of Civil Procedure laying challenge to the judgment and decree dated
25.10.2017 as well as the order dated 13.10.2017 whereby the Trial Court has decided to proceed ex-parte against the appellant - defendant.
Mr. Shreyansh Mardia, learned counsel for the appellant submitted that the counsel for the defendant was suffering from cancer and was
undergoing treatment at Jaipur, for which he was unable to attend the proceedings before the Trial Court. A request to this effect was made by the
appellant before the Trial Court to grant some indulgence as he was not having record or file of the case. Mr. Mardia further contended that in
absence of relevant record and file, the defendant could not prosecute the case even by engaging some other lawyer. Narrating the predicament of
the appellant, learned counsel argued that the Trial Court has resulted in proceeding ex-parte. Mr. Surendra Surana, learned counsel appearing for
the respondents - plaintiffs on the other hand argued that the Court below has decided to proceed ex-parte against the appellant - defendant on
13.10.2017 and the decree in question has not been passed on the same date and as a matter of fact, it came to be passed on the next date i.e.
25.10.2017. As such it was required of appellant to have filed appropriate application for setting aside the ex-parte proceedings, and
consequential decree instead of preferring the present appeal laying challenge to the same.
Heard learned counsel for the parties and perused the material available on record.
Upon perusal of the proceedings of the Court below placed by the appellant, it is clear that the learned Court below has drawn the ex-parte
proceedings against the defendant on 13.10.2017 and fixed the next date of hearing as 25.10.2017. On the next date i.e. 25.10.2017, the learned
Court below has passed the judgment and decree under challenge, without even giving breathing time to the appellant.
In view of the facts obtaining in the present case, this Court is of the considered opinion that the learned Court below has erred in drawing the
ex-parte proceedings as well as passing the impugned judgment and decree, particularly when the counsel for the defendant was terminally ill.
The learned Court below was required to grant some indulgence to the defendant, at least to make some alternative arrangement. The ex-parte
proceedings dated 13.10.2017 cannot be countenanced in the present factual matrix, for which the order dated 13.10.2017 is set aside. As a
result of setting aside the exparte proceedings, the impugned judgment and decree dated 25.10.2017 also falls flat on the ground.
The present appeal is allowed. The ex-parte proceedings dated 13.10.2017 and so also judgment and decree dated 25.10.2017 are quashed
and set aside. The appellant shall pay a cost of Rs.3,000/- to the respondents- plaintiffs.
The suit No.30/2016 (CIS No.750/2014) Babra Vs. Madia & Others stand restored to the record of the Trial Court. Both the parties/their
counsel shall appear before the Trial Court on 26.02.2018. Thereafter, the Trial Court shall proceed in accordance with law.