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2000 DIGILAW 436 (MP)

Assistant Collector v. Raipur Wire and Steel Ltd.

2000-04-26

V.K.AGARWAL

body2000
This appeal is directed against the order dated 9.12.1999 in M.J.C. No. 30/99, by XI ADJ Jabalpur, whereby the application of petitioners/appellants under Order 9 Rule 13 C.P.C. for setting aside ex-parte judgment and decree, was dismissed. The appellants were defendant Nos. 3 & 4 in Civil Suit No. 134-B/94 filed by the plaintiff/respondent No. 1 herein for recovery of excise duty recovered by the appellants and other defendants. The suit was instituted on 14.6.1983. In the said suit notices were issued and the defendants were duly represented. The counsel for the defendants continued to ask for time for filing written statement. Several opportunities were granted by the learned trial Court for the purpose, as would be clear from the proceedings in the suit. Ultimately on 8.8.1994, the defendants and their counsel remained absent, and therefore, the case was fixed for recording ex-parte evidence. After a few adjournments, evidence was recorded and ex-parte judgment and decree were passed on 17.4.1994. Thus, almost for a period of 10 years, after the service of notice of the suit on the defendants, the case lingered on without any progress. The defendants duly represented by their counsel, sought umpteen opportunities to file written statement without availing of the same. The trial Court, therefore, was left with no option but to pass ex-parte judgment and decree against the appellants and other defendants. After passing of the judgment and decree as above, the appellants came up with an application under Order 9 Rule 13 C.P.C., praying that the same be set aside. It was stated in the application that the appellants had no knowledge about the institution of the case or its pendency, and that they came to know about the proceedings of the suit when the execution proceedings were initiated by the plaintiff/respondent No. 1. It was submitted that the summons were not duly served on the appellants. The learned trial Court has repelled the contentions as above, and has held that since the appellants were duly represented by their counsel, their contentions as above cannot be accepted. Learned counsel for appellants relying on Rafiq and another v. Munshilal and another ( AIR 1981 SC 1400 ), has urged that the appellants deserve an opportunity for bi-party hearing. The learned trial Court has repelled the contentions as above, and has held that since the appellants were duly represented by their counsel, their contentions as above cannot be accepted. Learned counsel for appellants relying on Rafiq and another v. Munshilal and another ( AIR 1981 SC 1400 ), has urged that the appellants deserve an opportunity for bi-party hearing. It has been submitted that the appellants cannot be punished for no fault on their part on the ground of laches or negligence of counsel in appearing before the learned trial Court. In the instant case, it is obvious that the defendants in the case were duly represented by their counsel. The matter remained pending for a long time. The defendants/appellants as also other defendants did not file even their written statement for more than ten years, despite several opportunities. The callous attitude as above by the appellants cannot be condoned, and the submission that the appellants were not aware of the pendency of the proceedings in the foregoing circumstances, cannot be accepted. It is clear as has been held by the learned trial Court that the appellants and other defendants were duly represented in the suit by their counsel but did not even file their written statement. The finding of the learned trial Court that there was no sufficient cause for non-appearance by the appellants is justified. No interference therein is called for. This appeal is, therefore, without merit and is dismissed. Cost of this appeal shall be borne by the parties, as incurred.