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2003 DIGILAW 1238 (MP)

Balram v. Devkinandan

2003-11-13

S.K.PANDE

body2003
ORDER S.K. Pande, J. 1. Being aggrieved by the order dated 27-3-2001, passed by m ADJ, Sagar in MA No. 3/2000, affirming the order dated 19-3-2000, passed by Civil Judge Class I, Rehli in MJC No. 9/98, defendant/applicants have preferred this revision under section 115, Civil Procedure Code. 2. Facts in brief are, plaintiff/non-applicants Devkinandan, Ramesh, Santosh and Kallu instituted C.S. No. 35-A/93 against the defendant/applicants in the Court of I Civil Judge Class I, Rehli seeking declaration of title on Khasra No. 35 (27/3) area 1.00 acres, village Patnaburg, Tahsil Rehli, District Sagar, Defendant/applicants remained absent on 16-2-1998, therefore, they were proceeded ex parte and the judgment-decree ex parte dated 31-3-1998 decreeing the suit was pronounced. The defendant/applicants on 24-8-1998, filed application under Order 9, Rule 13, Civil Procedure Code together with application under section 5 Limitation Act for condonation of delay and setting aside the ex parte judgment-decree dated 31-3-1998 on the ground that their advocate since was appearing, they did not attend the Court on 16-2-1998. The advocate never informed them the progress of the case and their requirement to appear on 16-2-1998. Even after passing of judgment-decree dated 31-3-1998, the advocate did not inform the result of the suit. 3. The application (MJC No. 9/98) has been resisted by the plaintiff/non-applicants on the ground that the defendant/applicants were representing by their advocate and since 23-12-1995 did not file their written statement. Several applications were filed by the defendant/applicants and finally on 6-10-1997, the application under Order 7, Rule 11, Civil Procedure Code has been dismissed. The defendant/applicants were directed to file written statement on 6-11-1997. Since then their advocate appeared and all the time sought adjournment till 16-2-1998. On 16-2-1998 since none appeared on behalf of the defendant/applicants, they were proceeded ex parte. The evidence of the plaintiff/non-applicants was recorded on 30-3-1998. The ex parte judgment dated 31-3-1998 was pronounced. The same day, plaintiff/non-applicant Ramesh Kumar informed everybody in the village that he has won the case. Motilal also apprised defendant/applicant Balram that the suit has been decided against him. In spite of this, the application under Order 9, Rule 13, Civil Procedure Code was not filed within time. Instead it was filed on 24-8-1998. 4. The Civil Judge in MJC No. 9/98 vide Order dated 23-3-2000 held that defendant/applicant failed to show sufficient cause for their non-appearance on 16-2-1998. In spite of this, the application under Order 9, Rule 13, Civil Procedure Code was not filed within time. Instead it was filed on 24-8-1998. 4. The Civil Judge in MJC No. 9/98 vide Order dated 23-3-2000 held that defendant/applicant failed to show sufficient cause for their non-appearance on 16-2-1998. Also they have failed to show sufficient grounds to condone the delay in filing application under Order 9, Rule 13, Civil Procedure Code within time. Therefore, the Civil Judge dismissed the application under Order 9, Rule 13, Civil Procedure Code. Being aggrieved the defendant/applicants preferred M.A. No. 3/2000 before the III ADJ, Sagar. Affirming the order aforesaid of Civil Judge in MJC No. 9/98, the Court below dismissed the appeal vide impugned order dated 27-3-2001. 4-A. From the perusal of record of C.S. No. 35-A/93, it is clear that defendant/applicants made their appearance through the advocate continuously from 11-1-1995 and their application under Order 7, Rule 11, Civil Procedure Code had been dismissed by the Civil Judge vide order dated 6-10-1997. The defendant/applicants were directed to file written statement by 6-11-1997. The defendant/applicants continuously from 6-11-1997 to 16-1-1998, requested the Court to adjourn the case for filing of written statement. They remained absent on 16-2-1998 and did not file their written statement on payment of cost Rs. 100/- as has been ordered on 16-1-1998. Thereafter, recording the evidence, the ex parte judgment dated 31-3-1998 was pronounced. A.W.-1 Balram has stated that on behalf of defendant/applicants, advocate was appearing in the Court. The advocate did not inform that they are required to file written statement and participate further. After the ex parte judgment dated 31-3-1998 also, no information has been sent by the advocate to defendant/applicant. It is the duty of the defendant/applicants, the party contesting the suit to make appearance before the Court and ensure that the Court's order are complied. D.W.-1 Ramesh Kumar has stated that the ex parte judgment dated 31-3-1998 was pronounced by the Court and the same day he distributed sweet (prasad) in the village. NAW-2 Motilal has stated that he personally apprised AW-1 Balram that he has lost the case and the sweet (prasad) has been distributed by NAW-1 Ramesh Kumar. This is a case of gross negligence on the part of defendant/applicants. Having appeared before the Court avoided filing of written statement instead filed application under Order 7, Rule 11, Civil Procedure Code. NAW-2 Motilal has stated that he personally apprised AW-1 Balram that he has lost the case and the sweet (prasad) has been distributed by NAW-1 Ramesh Kumar. This is a case of gross negligence on the part of defendant/applicants. Having appeared before the Court avoided filing of written statement instead filed application under Order 7, Rule 11, Civil Procedure Code. Their application has been dismissed on 6-10-1997 and the defendant/applicants were directed to file the written statement. Seeking adjournment, the defendant/applicants remained absent on 16-2-1998. Accordingly, they were proceeded on ex parte. The statement of AW-1 Balram cannot be accepted as reason for non-appearance of defendant/applicants. It was their duty to remain present and participate in proceedings in C.S. No. 35-A/93. It cannot be said that for want of any information from their advocate, they remained absent on 16-2-1998. On this ground the Courts below rightly held that defendant/applicants are not entitled to seek setting aside of the ex parte judgment-decree dated 31-3-1998. 5. No sufficient cause since has been shown for their non-appearance. The Civil Judge vide order dated 23-3-2000 in MJC No. 9/98, rightly rejected the application under Order 9, Rule 13, Civil Procedure Code together with application under section 5 Limitation Act. The Court below rightly affirmed the aforesaid order in M. A. No. 3/2000 vide impugned order dated 27-3-2001. The order aforesaid does not suffer from any material irregularity. 6. Consequently, the revision fails and is dismissed. No order as to costs.