A party seeking to set aside an ex parte judgment and decree must demonstrate sufficient cause for non-appearance and file the application within a reasonable time, as per Order 9 Rule 13 CPC and Section 5 of the Limitation Act.

JUDGMENT :

Prakash Gupta, J.

1. Matter comes up on an application for early listing of the case.

2. Application is allowed for the reasons mentioned therein and with the consent of the learned counsel for the appellant-defendant, arguments have been heard and this Civil Misc. Appeal is being decided finally at this stage.

3. This appeal has been filed by the appellant-defendant against the order dated 9.4.2019 passed by Addl. District Judge, Chirawa in Civil Misc. Case No. 47/2018 (original suit No. 05/2016), whereby the application filed by the appellant-defendant under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 15.12.2016, has been dismissed.

4. Facts of the case are that the respondent-plaintiff filed a suit No. 05/2016 against the appellant-defendant for recovery of Rs. 95,000/-. Summons were issued. On 19.1.2013, appellant-defendant's Advocate put in appearance and filed Vakalatnama. The appellant-defendant neither filed written statement nor appeared on 25.4.2015. Resultantly the matter was proceeded ex parte against him and on 15.12.2016 the impugned ex-parte judgment and decree came to be passed. Thereafter in the year 2019, he filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment and decree dated 15.12.2016, which came to be dismissed vide order dated 9.4.2019. Hence, this appeal.

5. Learned counsel for the appellant-defendant submits that his advocate was busy in another Court and appellant-defendant was out of town for purposes of his livelihood. Therefore, when the ex-parte proceedings were carried out against him, neither the appellant-defendant nor his advocate appeared before the Court on 25.4.2015. It was further submitted that on 29.5.2018, appellant-defendant's advocate informed him about the ex-parte judgment and decree having been passed against him. Thereafter he applied for certified copy of the ex parte judgment and decree and on obtaining the same, filed an application for setting aside the ex-parte judgment and decree alongwith an application under Section 5 of the Limitation Act, but the same was dismissed by the Court below despite the fact that sufficient cause, rather good cause was shown by the appellant-defendant for his and his advocate's previous non appearance in the proceedings of the suit. Hence, the impugned order dated 9.4.2019 passed by the Court below is liable to be quashed and set-aside. In support of his submissions, he has relied upon the judgment of the Hon'ble Apex Court in the case of Savitri Amma Seethamma vs. Artha Karthy, (1983) 1 SCC 401 to submit that non appearance of counsel at the time of hearing on account of being busy elsewhere was a sufficient cause to entitle a party for restoration of the proceedings.

6. Heard. Considered.

7. Admittedly, on 25.4.2015 the matter was proceeded ex-parte against the appellant-defendant and ex-parte judgment and decree came to be passed on 15.12.2016. He filed an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree on 29.6.2018. The appellant-defendant did not contact his advocate for about 3 years from the date when ex-parte proceedings were drawn against him, which shows gross negligence towards his own rights. Although the appellant stated that he was out of town for purposes of his livelihood, but neither the place nor the period during which he went outside to earn the livelihood, was mentioned.

8. Similarly, it was not mentioned by the appellant-defendant as to in which Court and in which case his Advocate was busy. In support of his contentions, affidavit of the Advocate that he was busy in another Court was also not filed.

9. I am of the considered view that application for setting aside the ex-parte judgment and decree dated 15.12.2016 has not been moved within reasonable time and sufficient cause for non appearance has not been given by the appellant-defendant.

10. The judgment passed by the Hon'ble Apex Court in the case of Savithri Amma