JUDGMENT (Oral)

I.A. 13846/2022 (u/S 5 of Limitation Act, 1963 r/w Section 151 of CPC, 1908)

1. By way of present application, the applicant/defendant No. 2 seeks condonation of 130 days' delay in re-filing I.A. 13845/2022 under Order IX Rule 7 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC, 1908").

2. For the reasons and grounds stated in the present application, the application is allowed, the delay of 130 days in re-filing I.A. 13845/2022 under Order IX Rule 7 of CPC, 1908 is condoned.

3. Accordingly, the present application is disposed of.

I.A. 13748/2022 (u/S 5 of Limitation Act, 1963 r/w Section 151 of CPC, 1908

4. By way of present application, the applicant/defendant No. 2 seeks condonation of 130 days' delay in re-filing I.A. 13747/2022 under Order VIII Rule 1 read with Section 151of the CPC, 1908.

5. For the reasons and grounds stated in the present application, the application is allowed, the delay of 130 days in re-filing I.A. 13747/2022 under Order VIII Rule 1 read with Section 151of the CPC, 1908 is condoned.

6. Accordingly, the present application is disposed of.

I.A. 13845/2022 (u/O IX Rule 7 r/w Section 151 of CPC, 1908 for setting aside ex parte Order dated 13.11.2019 by D-2)

7. By way of Application under Order IX Rule 7 read with Section 151 of CPC, 1908, defendant No. 2 seeks to set aside the ex parte Order dated 13.11.2019 vide which it was proceeded against ex parte.

8. It is submitted in the application that the learned counsel for defendant No. 2 could not appear on 13.11.2019, the day when the ex-parte Order had been passed, for the reason that the grandmother of the learned counsel of the defendant No. 2 had expired on 13.11.2019 and he had gone to his native village in the early morning on the said date, for the last rites of his grandmother. He had requested his colleague to appear on his behalf, but by the time his colleague appeared, the defendant No. 2 had already been proceeded ex parte.

9. Thereafter, the second application for amendment of the Plaint was filed on 29.11.2019 and the same was allowed vide Order dated 20.12.2019.The counsel for defendant No. 2 was in the process of preparing the Written Statement of the amended Plaint, when he noticed that the defendant No. 2 has been proceeded ex parte.

10. Therefore, the prayer is made that the Order dated 13.11.2019 whereby the applicant/defendant No. 2 was proceeded ex parte, may be set aside and an opportunity be given to file the Written Statement.

11. The plaintiff in its Reply has contended that the applicant was proceeded against ex-parte after seven months of his service and had time to file the Written Statement. Further, there is no explanation forthcoming for non-appearance of the applicant when the matter was listed on 01.08.2019, 13.11.2019, 2.12.2019, 20.12.2019, and 22.01.2020.

12. Furthermore, the said application under Order IX Rule 7, CPC, 1908 seeking to set aside the Order dated 13.11.2019 kept on lying in defect for more than two and a half years before the Registry, without any legitimate explanation for the delay in re-filing the application.

13. It is, therefore, submitted that the present application is without merit and is liable to be dismissed.

14. Submissions heard.

15. To comprehend the assertions made by the non-applicant/plaintiff, it would be relevant to mention the following dates:

S. No.DateRemarks1.07.03.2019Defendant No. 2 served.2.15.03.2019I.A. 3884/2018 u/O VI Rule 17 r/w Section 151 of CPC, 1908 was filed on behalf of plaintiff. None appeared on behalf of defendant No. 23.25.04.2019Counsel for defendant No. 2 appeared for the first time.4.03.07.2019None appeared on behalf of defendant No. 25.24.07.2019Counsel for defendant No. 2 appeared.6.01.08.2019None appeared on behalf of defendant No. 2. I.A. 3884/2019 u/O VI Rule 17 r/w Section 151 of CPC, 1908 was withdrawn by plaintiff.7.13.11.2019Defendant No. 2 was proceeded ex parte.8.29.11.2019I.A. 16944/2019 u/O VI Rule 17 r/w Section 151 of CPC, 1908 w

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