Vijendra Singh vs A Bandyopadhyay and Others

Indermeet Kaur, J.—The impugned order is dated 24.02.2012. The appellate Court had allowed the appeal against the dismissal of the application filed by the defendants under Order 9 Rule 13 of the CPC (hereinafter referred to as the ''Code''). Record shows that the plaintiff has filed a suit for declaration and compensation; he is the employee of the defendants. His contention was that his name should be mentioned as an author of the project titled as ''Indian Journal of Genetics and Plant Breeding''; compensation had also been claimed; contention being that he was the author of this research project. Ex-parte judgment and decree was passed on 21.01.2005. Present application under Order 9 Rule 13 of the Code along with an application u/s 5 of the Limitation Act was preferred on 14.05.2008 and 04.12.2009 by defendants No. 1, 3 & 4; contention was that they learnt about the ex-parte judgment and decree on 21.04.2008 only when the plaintiff visited the office of defendant No. 4 informing him about the same; it was only then a certified copy of the order was obtained through new counsel as the earlier counsel had not informed them about the fate of the case; it was only that they learnt about this ex-parte judgment; this information was retrieved by them only on 25.04.2008.

The trial Court did not entertain the application filed by the applicants; it was of the view that sufficient cause has not been explained by the defendants for not contesting the suit on its merits. In appeal the impugned order had set aside the order of the trial Court.

Record shows that the earlier counsel contesting the case of the defendants was Mr. Lalal Chaudhary and he was appearing before the trial Court on certain dates which have been noted as 20.05.2005 and 17.09.2005; he had sought time to file reply; thereafter he stopped appearing; defendants No. 2 & 3 are Government bodies; their contention was that the they had engaged a counsel and they were under a bonafide impression that their case was being pursued diligently; the impugned judgment had noted these facts in the correct perspective; subject to payment of costs, the Court had felt it appropriate that a valuable right of the defendants would be lost in case they are not allowed to plead their case; ex-parte judgment dated 21.01.2008 had been set aside.

The averments made in the application under Order 9 Rule 13 of the Code have furnished a justifiable explanation for non-appearance of the defendants as their contention was that their Advocate did not inform them about his defaulting appearance and they learnt about this ex-parte judgment and decree dated 21.01.2008 only on 21.04.2008 when the plaintiff visited their office and this information was retrieved by them on 25.04.2008.

Exercise of discretion by the appellate Court in favour of the defendants giving them a right to contest the petition on merits in this background suffers from no infirmity; it was a fair discretion. Petition is without any merit. Dismissed.