A party should not suffer due to the Advocate's negligence, but must also be vigilant about the case's progress.

JUDGMENT :

Krushna Ram Mohapatra, J.

1. The appellant, who is defendant in C.S. No. 49 of 2012 of the court of learned Civil Judge (Senior Division), Sambalpur, has come up in this appeal assailing the order dated 24.7.2014 passed in CMA No. 17 of 2013 rejecting an application under Order 9 Rule 13C.P.C. to set aside the ex parte judgment and decree dated 16.3.2013 and 25.3.2013 respectively in the aforesaid suit.

2. The plaintiffs are respondents in this appeal. Plaintiffs' case, in brief, is that one Prufulla Ghibila died on 30.8.2011 due to electrocution for the negligence on the part of the defendants-company and thus, his dependants-legal heirs (widow and children) filed a suit claiming compensation of Rs. 30,40,000/- with 18% interest per annum and cost.

3. It is not disputed that the defendant-appellant on receipt of summons appeared through Mr. G.K. Satpathy, Advocate on 03.08.2012 and sought for time to file written statement. Subsequently, the defendant-appellant was set ex parte due to non-appearance of its Advocate on 5.10.2012. The suit was taken up for ex parte hearing on 8.01.2013 and 14.02.2013 respectively. On 08.03.2013, argument was closed. On 16.03.2013, ex parte judgment was passed and ex parte decree was signed on 25.3.2013 by the learned Civil Judge (Senior Division), Sambalpur. Subsequently, Execution Case No. 22 of 2013 was filed by the plaintiffs and the defendant-appellant was noticed to appear and file show cause on 14.08.2013.

4. After receipt of the notice in the Execution Case No. 22 of 2013, the concerned officer of the defendant-company contacted Mr. Satpathy, learned Advocate appearing for it and requested Mr. Satpathy to look into the matter and file a petition for setting aside the ex parte judgment and decree. Again on 20.8.2013, he visited the Chamber of concerned Advocate but the learned Advocate intimated him that due to his illness, he could not enquire into the matter and also informed that as the Advocates of Sambalpur Bar Association were on strike, no steps could be taken till strike is called off. The strike was called off on 30.9.2013. Thus, on 1.10.2013, the defendant-company contacted Mr. Satpathy, Advocate and requested him to take steps without any further delay. Again on 8.11.2013, the concerned officer contacted Mr. Satpathy, for follow up action, but on that date he, for the first time, refused to conduct the case on the plea of his illness and returned the brief to the defendant-company. On receiving the case record, the defendant-company immediately engaged another Advocate on 11.11.2013 who filed an application to inspect the case records in C.S. No. 49 of 2012 as well as in Execution Case No. 22 of 2013. On 13.11.2013, the case record was made available for inspection from which it revealed that the former Advocate had not taken any step after filing Vakalatnama, therefore, the defendant-company was set ex parte and ex parte judgment was passed in the matter. Thus, without making any further delay, the defendant-company filed CMA No. 17 of 2013 under Order 9 Rule 13 C.P.C. for setting aside the ex parte judgment and decree passed in C.S. No. 49 of 2012 along with a petition for condonation of delay. To show its bona fide, the defendant-company also filed written statement along with the CMA and prayed for acceptance of the same and to allow it to contest the suit after setting aside the ex parte decree.

5. The plaintiffs-respondents filed their show cause strongly refuting the averments made in the plaint. They specifically prayed that the defendant-company has duly received the summons in the suit and was represented by an Advocate, who took time to file written statement. Due to sheer negligence on the part of the defendant-company and its Advocate, it was set ex parte and ex parte judgment was passed in the matter. They also contended that grounds taken in the petition under Order 9 Rule 13 C.P.C. as well as in the petition for condonation of delay can, at no stretch of im