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2005 DIGILAW 89 (CHH)

PRAMOD KUMAR AGARWAL v. MUKESH KUMAR AGARWAL

2005-03-10

DHIRENDRA MISHRA

body2005
ORDER 1. Heard. 2. This Misc. Appeal has been preferred by the appellant as he is aggrieved by the impugned order dated 7-7-2003 passed by First Additional District Judge, Raigarh in Misc. Case No. 8/2003 and by which the application of the defendant/appellant for setting aside exparte decree dated 25-9-2001 has been dismissed. 3. Learned counsel for the appellant submits that the appellant was prevented by appearing in the proceedings before the trial Court as he believed in the assurance of the advocate who had advised him not to appear on the date of proceedings before the trial Court and they shall be intimating him as and when his presence is required in the case and believing upon the said assurance, counsel for the appellant did not attend the Court and subsequently when he went to Raigarh on 12-12-2001 in connection with some marriage, he was appraised by his counsel Shri Manikpuri, Advocate about exparte decree passed against the appellant. 4. The reason assigned by the appellant is bona fide. Learned Court below has committed illegality by not allowing the application for setting aside the exparte decree and the judgment is erroneous wherein it is mentioned that the advocate, Manikpuri is not engaged by the appellant as in reply to the application for setting aside exparte decree in favour of the non appellants as they themselves have admitted that Manikpuri advocate is appearing right from the beginning and conducted cross examination of the witnesses on behalf of the plaintiff. 5. Relying upon the judgment of the Apex Court in the matter of G.P. Shrivastava Vs. R.K. Rayzada & Others and M.K. Prasad Vs. P. Arumugam, learned counsel for the appellant submits that where it is possible to compensate adequately to the respondent for the losses that have been suffered due to the negligence of the appellant, the application for setting aside the decree shall be allowed. 6. Learned counsel for the appellant submits that even the Order 9 Rule 13 of CPC itself provides that on condition of sufficient ground being shown, exparte decree may be set aside by the trial Court on the condition of payment of cost. 7. 6. Learned counsel for the appellant submits that even the Order 9 Rule 13 of CPC itself provides that on condition of sufficient ground being shown, exparte decree may be set aside by the trial Court on the condition of payment of cost. 7. On the other hand, learned counsel for the appellant submits that the impugned order of the Court below by which finding has been recorded that the reason assigned by the appellant for non appearance is false, is based on material evidence available on record. The Court below has recorded that the ground taken by the appellant in the application for setting aside exparte decree order that his counsel Shri Dasgupta and Shri Manikpuri had assured him that they shall be informing him about the proceedings of the Court and they shall call him as and when he is required and the findings of the Court below has been found to be false on the ground that from the record, it is evident that he never engaged these counsel but he engaged Shri J.C. Nande as his advocate. The reason has also been disbelieved on the ground that the appellant was not aware of the appearance of the counsel and on that ground the Court below has rejected the application as the applicant has not moved the application for condo-nation of delay and filed the application for setting aside the exparte decree though the application was filed after the prescribed period of limitation. 8. I have heard learned counsel for the parties. 9. I have gone through the impugned order and material available on record. From the record it is reflected that from the year 1993, no advocate was appearing for the appellant before the trial Court though exparte proceedings were drawn only on 2-9-2001. It is also evident from the record that the appellant was represented by counsel, Shri J.C. Nande and not by Shri Dasgupta or Shri Manikpuri as has been submitted by the appellant in the application for setting aside exparte decree. 10. Even the statement on oath of the appellant has been disbelieved by the Court below on the ground that the appellant is not aware about the appearance of his own counsel and on these reasons, the Court below has arrived to the conclusion that the application for setting aside exparte decree is not based on bona fide submissions. 11. 10. Even the statement on oath of the appellant has been disbelieved by the Court below on the ground that the appellant is not aware about the appearance of his own counsel and on these reasons, the Court below has arrived to the conclusion that the application for setting aside exparte decree is not based on bona fide submissions. 11. It is submitted by the counsel for the respondent that during the pendency of this appeal, in execution of the impugned order, sale deed has already been executed by the trial Court on 23-6-2004 and possession has already been taken over by the respondent. 12. Thus, considering the facts and circumstances of the case and the material available on record, the ground on which the application for setting aside exparte decree has been dismissed by the trial Court is based on the material available on record and the appellant has failed to prove any sufficient cause for not appearing before the Court below and as such the appeal in question is devoid of any merit and the same is liable to be dismissed and accordingly it is dismissed. Appeal Dismissed.