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2013 DIGILAW 1683 (RAJ)

Sarju Devi v. Gurucharan Singh

2013-09-20

BELA M.TRIVEDI

body2013
Hon'ble TRIVEDI, J.—The order under challenge in the present appeal is the order dated 4.1.11 passed by the Addl. District Judge No.3, Ajmer (hereinafter referred to as 'the court below) in Civil Misc. Case No. 96/10, whereby the court below has dismissed the application of the appellants-applicants filed under Order IX Rule 13 of CPC alongwith the application filed under Section 5 of the Limitation Act, for setting aside the ex-parte decree dated 2.8.03 passed by the court below in Civil Suit 149/02. 2. The short facts giving rise to the present appeal are that the respondent-plaintiff had filed the suit against the appellants-defendants seeking specific performance of the agreement dated 18.7.01 allegedly executed by the appellants. In the said suit the appellants-defendants did not appear though were duly served and though the advocate named Mr. Mangal Singh Rawat had filed his appearance on their behalf. The court therefore passed an ex-parte decree in favour of the respondent-plaintiff vide the judgment and decree dated 2.8.03. When the said decree was sought be executed by the respondent-plaintiff in the execution proceedings, the notices were issued to the appellants-defendants. The appellants-applicants thus having come to know about the said ex-parte decree, they filed the application in the year 2010 under Order IX Rule 13 of CPC for setting aside the said degree and also filed an application seeking condonation of delay occurred in filing the said application. The court below dismissed both the applications vide the impugned order. It appears that pending this appeal the sale-deed was also got registered in favour of the respondent-plaintiff through the court. 3. It has been sought to be submitted by the learned counsel Mr. Shobhit Tiwari for the appellants that the concerned advocate appearing for the appellants in the suit and also in the execution proceedings had acted against the interest of the appellants by not properly representing the case of the appellants and not informing the appellants about the status of the proceedings. According to him, the appellants should not be made to suffer for the faults of his advocates. He has also relied upon the decision of the Apex Court in case of N. Balakrishanana vs. M. Krishnamurthy (1998) 7 SCC 123 in support of his submission that substantial justice be done by the courts. He further submitted that the appellant had also deposited Rs. He has also relied upon the decision of the Apex Court in case of N. Balakrishanana vs. M. Krishnamurthy (1998) 7 SCC 123 in support of his submission that substantial justice be done by the courts. He further submitted that the appellant had also deposited Rs. 75,000- to show his bonafides as per the order passed by this court on 16.3.11 and that the lenient view be taken in the matter. 4. However, the learned counsel Mr. J.K. Yogi for the respondent submitted that the case of the appellants would not fall under Order IX Rule 13 inasmuch as the appellants were duly served in the suit and had also engaged the advocate to represent them. He also submitted that in the execution proceedings also the appellants had engaged the advocate but thereafter did not choose to challenge the ex-parte decree for about 7 years and therefore, the court below has rightly dismissed the applications of the appellants. 5. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the court below, it clearly transpires that the appellants were duly served in t he suit and had also engaged the lawyer to represent them. Since the said lawyer did not appear, the ex-parte decree came to be passed in the year 2003 in the suit. It further appears that the respondent having filed the execution proceedings, again the notices were served on the appellants, and they had also engaged the advocate named Kailash Singh. According to the appellants, though the said Kailash Singh had pleaded “no instructions”, the executing court allowed the execution proceedings to proceed further and the sale deed was got executed in favour of the respondent through the court on 9.3.11. At this juncture, it is pertinent to note that knowing fully well that the ex-parte decree was passed in the year 2003 and the execution thereof was also filed against the appellants, they filed the application for setting aside the ex-parte decree dated 2.8.03 in the year 2010 without showing any sufficient cause for condonation of gross delay. 6. At this juncture, it is pertinent to note that knowing fully well that the ex-parte decree was passed in the year 2003 and the execution thereof was also filed against the appellants, they filed the application for setting aside the ex-parte decree dated 2.8.03 in the year 2010 without showing any sufficient cause for condonation of gross delay. 6. Though it was sought to be submitted that due to the negligence and carelessness of the concerned advocates, the ex-parte decree in the suit and the adverse order in execution proceedings came to be passed against the appellants, such submission cannot be accepted as no action appears to have been taken by the appellants against the said advocates for their carelessness and negligence. In the case before the Apex Court, relied upon by the learned counsel for the appellants, the concerned appellant had taken the action against the errant lawyer who had remained negligent in attending the case of the appellant, by filing application in the District Consumer Disputes Redressal Forum, and the said Forum directed the said advocate to pay compensation of Rs. 50,000 besides the cost of Rs.5,000/- to the appellant. In the instant case the appellants have not taken any action against their advocates and therefore their case that their advocates had remained negligent in attending their case cannot be believed. 7. It is also axiomatic that for setting aside the ex-parte decree under Order IX Rule 13 of CPC the defendants have to satisfy the court that summons were not duly served, or that they were prevented by any sufficient cause from appearing when the suit was called on for hearing. It is also needless to say that sufficient cause would imply legal and adequate reasons, and that it must fall within the concept of reasonableness and the conduct of the party concerned. The appellants having failed to satisfy either of the situations as contemplated in Order IX, Rule 13 of CPC, the court is not inclined to interfere with the just and proper order passed by the court below. The present appeal being devoid of merits deserves to be dismissed, which is accordingly dismissed. 8. At this juncture, it may be observed that the appellants shall be at liberty to withdraw the amount of Rs. The present appeal being devoid of merits deserves to be dismissed, which is accordingly dismissed. 8. At this juncture, it may be observed that the appellants shall be at liberty to withdraw the amount of Rs. 75,000/- deposited by them pursuant to the order dated 16.3.11 passed by this court, with interest if the said amount was invested in the FDR.