The judgment established the principle that a party may succeed in setting aside an ex parte decree by demonstrating sufficient cause for non-appearance, even if the delay is due to the acts of omission or commission of the lawyer.

1. This appeal is directed against the order dated 09.09.2014, passed by the trial court, on an application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (in short the CPC). The said application was accompanied by an application under Section 5 of the Limitation Act, 1963 (in short the Limitation Act). The trial court dismissed the appellant’s application under Order 9 Rule 13 of the CPC on the ground of inordinate delay of 607 days and, broadly, for the reason that it did not believe the stand taken in the application that the appellant had engaged a counsel in the matter, who had been tasked with the duty to defend his case.

2. Briefly, the aforementioned applications thus, came to be filed by the appellant/ defendant in the background of the following facts:

2.1 The respondent/ plaintiff herein had filed a suit for recovery for a sum of Rs. 5 lacs which was provided to the appellant herein, who was arrayed as defendant no.1 in the suit. The appellant/ defendant no.1 is a partner in a firm by the name of M/s Advance Surface Technology. The said entity was impleaded as defendant no.2 in the suit.

2.2 The respondent/ plaintiff had advanced the said financial assistance, in the sum of Rs. 5 lacs, as indicated above, for development of “Dip Coating Machine” for coating sol-gel on ophthalmic lenses etc. The terms and conditions under which the said sum was advanced to the appellant were crystallized in a document dated 31.03.2008. The time for completion of the project was initially set at 31.03.2009, which, it appears, was extended.

2.3 According to the respondent/ plaintiff the appellant was unable to comply with the terms and conditions for which the grant was made to him and upon refund being sought by the respondent/ plaintiff, the same was declined.

3. It is in this background that the suit came to be filed. It appears that summons in the suit were issued and the appellant, pursuant to receipt of the summons, appeared in court, in person, on 14.09.2011. On that date, admittedly, the appellant was not accompanied by any advocate, and that, he in affirmation of his presence in court, signed in the margin of the order sheet generated on that date.

3.1 It is also not disputed before me that, as per the order sheet so generated, the appellant was given time to file a written statement in the matter.

3.2 It is, however, the case of the appellant, both before the trial court and in this court, that he had engaged a counsel by the name of Mr. Uday Vir Singh Tanwar to defend him in the suit filed by the respondent/plaintiff. The appellant submits that for this purpose a Vakalatnama was also executed in favour of Mr. Uday Vir Singh Tanwar.

3.3 Apparently, the appellant was in touch with his lawyer Mr. Uday Vir Singh Tanwar, who assured him that he would take care of the matter. Unfortunately the counsel for the appellant, Mr. Uday Vir Singh Tanwar, passed away on 02.03.2013.

3.4 The appellant avers that he became aware, for the first time, as regards the suit having been decreed, only in December, 2013.

3.5 Pertinently, in the interregnum, an ex parte judgment and decree had come to be passed on 24.05.2012.

3.6 It is, thereafter, that the appellant filed the applications, referred to above. I am informed that application under Order 9 Rule 13 of the CPC, accompanied by an application under Section 5 of the Limitation Act, were filed on 20.02.2014. This fact is not disputed by the counsel for the respondent/ plaintiff.

4. It is in this background that the impugned order dated 09.09.2014 came to be passed whereby, the said applications were dismissed.

5. Mr Abhijat, who appears for the appellant, submits that the appellant, who is a scientist, was rather naive in leaving the affairs pertaining to his defence entirely in the hands of his advocate Mr. Uday Vir Singh Tanwar. Learned counsel submits that being unaware of the court procedures, the appellant placed faith in his advocate that he would fully and truly take care of