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2008 DIGILAW 384 (RAJ)

Ashok Kumar v. Ajmer Vidyut Vitran Nigam Ltd.

2008-02-07

GOVIND MATHUR

body2008
JUDGMENT 1. - This misc appeal is preferred to assail validity correctness and propriety of the order dated 28.1.2006 passed by the learned Addl. District Judge No.3, Udaipur rejecting the application preferred on behalf of the appellant-defendant for setting aside the ex parte judgment and decree dated 13.12.2004 in Civil Original Case No.131/2001. 2. In brief the factual matrix of the case is that the respondent plaintiff Rajasthan State Electricity Board preferred a suit for recovery of the sum of Rs.1,14,161.40/- against the appellant-defendant. During pendency of the suit the matter was referred to Settlement Committee of the plaintiff-Board and the Settlement Committee by its order dated 23.5.2002 determined the dues sought to be recovered from the defendant-appellant. The order of the Settlement Committee was placed on record of the suit on 13.8.2004. As per the appellant he was ready and willing to deposit the amount determined by the Settlement Committee. Be that as it may no written was filed to the plaint by the appellant-defendant, therefore, on 13.12.2004 in absence of counsel for the defendant-appellant the suit was decreed ex parte. To set aside the judgment and decree dated 13.12.2004 an application under Order 9 Rule 13 CPC was preferred and that came to be rejected by the order impugned by holding that adequate opportunity was given to the appellant-defendant for filing written statement but that was not availed of. This Court by an order dated 27.9.2007 stayed recovery of the decreetal amount subject to the condition that the defendant appellant deposits a sum of Rs.80,000/- before the trial court. It is accepted by the parties that the amount aforesaid has already been deposited on 5.11.2007. 3. I have examined the order impugned and also record of the case. It is not in dispute that the matter was referred to the Settlement Committee and the Settlement Committee passed an order on 23.5.2002 and a copy whereof was placed on record of the trial court on 13.8.2004 that is after a lapse of about two years and three months. From perusal of the judgment dated 13.12.2004 it reveals that no reference of the order passed by the Settlement Committee is given therein. Once the order was placed on record that should have been taken into consideration by the trial court irrespective of the fact that the defendant was represented by his counsel or not. 4. From perusal of the judgment dated 13.12.2004 it reveals that no reference of the order passed by the Settlement Committee is given therein. Once the order was placed on record that should have been taken into consideration by the trial court irrespective of the fact that the defendant was represented by his counsel or not. 4. In peculiar facts and circumstances of the case, specially looking to the fact that the appellant-defendant is accepting the order passed by the Settlement Committee on 23.5.2002 and has already deposited a sum of Rs.80,000/- with the trial court I consider it appropriate to set aside the order impugned dated 28.1.2006. 5. Accordingly, the appeal is allowed. The order dated 28.1.2006 is set-aside. The application preferred under Order 9 Rule 13 CPC is allowed. The ex parte judgment and decree dated 13.12.2004 is set aside. The original suit No.131/2001 (78/2000) stands restored. Both the parties are in agreement to appear before the trial court to proceed further with the matter on 25.2.2008. The record of the trial court be remitted forthwith.Appeal allowed. *******