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2014 DIGILAW 1418 (RAJ)

Reliance Communication Ltd. v. Basant Jain

2014-07-23

SANDEEP MEHTA

body2014
JUDGMENT 1. - Heard learned Counsel for the parties. 2. The instant appeal is preferred by the appellant against the order dated 19.7.2012 passed by the learned Additional District Judge (F.T.) No. 2, Jodhpur in Civil Misc. Case No. 129/2011 whereby the application filed by the appellant under Order 9, Rule 13 C.P.C. for setting aside of the ex-parte decree dated 6.10.2010 was rejected. 3. Mr. P.M. Vyas, learned Counsel for the appellant, vehemently contended that the appellant had engaged Mr. K.K. Vyas as Advocate for contesting the case on its behalf. Mr. Vyas did not appear before the Trial Court to plead the matter on behalf of the appellant and that is why ex-parte proceedings were undertaken against it. He urged that the law is settled that a litigant should not suffer for the fault of his Lawyer. He, therefore, prayed that in the interest of justice, while setting aside the ex-parte decree, the appellant should be granted an opportunity to contest the suit afresh before the Trial Court. 4. Per contra, Mr. Himanshu Maheshwari, learned Counsel for the respondent, urged that power was filed by the Counsel engaged by the appellant Company in the month of January', 2010. Proceedings of the money suit filed by the plaintiff/respondent in the Trial Court were adjourned till 20.8.2010 and till that time, even the written statement was not filed by the appellant. The Trial Court undertook ex-parte proceedings on 20.8.2010 and decreed the suit filed by the respondent/plaintiff on 6.10.2010. He informed this Court that the money decree passed in favour of the plaintiff has already been executed. He further contended that in the application for setting aside the ex-parte decree, even the name of the Counsel engaged by the Company has not been mentioned. Hence, he urged that the action of the appellant Company before the learned Trial Court was absolutely negligent. The appellant Company failed to instruct its Counsel properly and that is why ex-parte proceedings were taken against it. He thus urged that no interference is called for in the impugned judgment. 5. I have heard the learned Counsel for the parties and have gone through the impugned order. 6. Admittedly, the appellant Company was served with notice of the suit and power was filed on its behalf in January, 2010. He thus urged that no interference is called for in the impugned judgment. 5. I have heard the learned Counsel for the parties and have gone through the impugned order. 6. Admittedly, the appellant Company was served with notice of the suit and power was filed on its behalf in January, 2010. No written statement was filed on its behalf till 20.8.2010 on which day, the appellant's Counsel failed to appear and ex-parte proceedings were undertaken. The appellant has not taken any action against the Counsel engaged by it which clearly shows that it endorses the action of the Counsel. It was the prime duty of the appellant to have instructed the Counsel properly so that it could be defended in the suit filed against it. 7. The presumption is that the appellant failed to contact the Counsel and pursue the case after power was filed on its behalf and, therefore, the Counsel could not plead the case of the appellant before the Trial Court properly. The application for setting aside of the ex-parte decree was highly belated and was filed after a delay of a year and two months. 8. Resultantly, this Court is of the opinion that the learned Trial Court did not commit any illegality, irregularity, perversity or jurisdictional error in rejecting the application filed by the appellant under Order 9, Rule 13 C.P.C. for recalling the ex-parte decree. The impugned order does not call for interference.Resultantly, this appeal, being meritless, is hereby rejected. Stay petition also stands rejected.Appeal dismissed. *******