A party's failure to appear and respond in a timely manner, despite having representation, does not constitute sufficient grounds to set aside an ex-parte decree under Order 9 Rule 13 of the C.P.C.

ORDER

1. Petitioner has preferred this Civil Writ Petition aggrieved by order dated 04.09.2018 passed by Additional Sessions Judge No.2, Jhunjhunu (Raj.), whereby, application under Order 9 Rule 13 read with Section 151 of C.P.C. filed by the petitioner was dismissed.

2. It is contended by counsel for the petitioner that ex-parte proceedings took place because of absence of advocate. Advocate did not inform the petitioner about ex-parte proceedings and it is only when the ex-parte decree order was passed on 22.03.2018 and notice thereof was given by the respondent, that petitioner came to know about the passing of the decree order. Petitioner, thereafter, moved an application under Order 9 Rule 13 read with Section 151 of C.P.C. for setting-aside the ex-parte decree order, which application was dismissed by the Court on 04.09.2018, aggrieved by which, present Civil Writ Petition has been filed. It is also contended that if lapses are on part of the advocate, client cannot be made to suffer.

3. Counsel for the petitioner has placed reliance on 'The Secretary, Department of Horticulture, Chandigarh & Anr. vs. Raghu Raj (Civil Appeal No.6142/2008 arising out of Special Leave Petition (Civil) No.1583/2007).'

4. Counsel for the respondent has opposed the Civil Writ Petition. It is contended that suit was filed on 08.12.2011. Petitioner was served and vakalatnama was filed on behalf of the petitioner on 02.01.2012 and petitioner's counsel took time to file written statement, but no written statement was filed on 10.04.2012. Due to absence of the petitioner and his counsel, the Court below passed the ex-parte decree order against the petitioner. It is also contended that in the application filed by the petitioner, he has not given any justification for his absence and for not filing the written statement. It is further contended that in the application, even the name of the advocate is not mentioned and the Court below after considering the entire material rejected the application.

5. I have considered the contentions.

6. On behalf of the petitioner, appearance was put before the Court below on 02.01.2012. No written statement was filed after availing the opportunity on 10.04.2012. No one has put in appearance on behalf of the petitioner and the Court below proceeded ex-parte against the petitioner. Thereafter, matter continued for almost six years and after six years, ex-parte order was passed on 22.03.2018. There is no reason for non-absence for a period of six years and the allegation that the advocate did not inform the petitioner, cannot be take note of, as being a defendant, it is the duty of the petitioner to file his written statement and it would be believed that advocate told the petitioner that whenever he would be required, he would be called. Petitioner has not even named the advocate in the application for setting-aside the decree order.

7. The judgment cited by the counsel for the petitioner, wherein the High Court dismissed the appeal on merits, has no applicability on the facts of the present case. Apex Court observed that in absence of the appellant or his counsel, the appeal should be dismissed in default and not on merits.

8. Considering the above, no ground is made out for entertaining the present Civil Writ Petition.

9. Civil Writ Petition being devoid of any merits, is accordingly dismissed. Stay petition also stands disposed.