An application under Order IX Rule 13 CPC requires compelling reasons for absence; mere negligence does not justify setting aside an ex-parte decree.

JUDGMENT :

Jayant Banerji, J. - This petition has been filed seeking to set aside the order dated 15.03.2023 passed by Addl. District Judge, Court No. 8, Agra in Misc. Appeal No. 223 of 2022 and judgement and decree dated 18.05.2019 passed by the Addl. Civil Judge (Senior Division), Court No. 4, Agra in O.S. No. 796 of 2017- (Devendra Singh Advocate & another v. Moti Singh Sikarwar) and the impugned order dated 03.08.2022 passed by the Addl. Civil Judge (Senior Division), Court No. 1, Agra in Misc. Case No. 234 of 2019- (Shri Moti Singh Sikarwar v. Devendra Singh Advocate & another).

2. Mr. H.N. Singh, learned Senior Advocate, on instructions states that he is not pressing the challenge to the ex-parte judgment dated 18.5.2019 passed by the Additional Civil Judge, Senior Division, Court No. 4, Agra in Original Suit No. 796 of 2017.

3. The facts as stated in the petition is that earlier a suit bearing OS No. 26 of 2012 (Ajay Veer Singh v. Moti Singh and Others) was filed by the plaintiff-respondent No.2, seeking compensation with interest from the defendants on account of defamation of the plaintiff caused by the defendants therein. By a judgment and order dated 20.11.2018, the Original Suit No. 26 of 2012 was dismissed.

4. In the meanwhile, another suit bearing OS No. 796 of 2017 (Devendra Singh and Another v. Moti Singh) came to be filed by the plaintiff-respondents in the court of the Civil Judge, Senior Division, Agra, seeking compensation of Rs. 20 Lakh from the defendant-petitioner on the ground that a false complaint had been lodged by the defendant-petitioner against the plaintiff-respondents before the Bar Council of Uttar Pradesh, labelling serious and false allegations, which led to the disciplinary committee of the Bar Council summoning the plaintiff-respondents in various districts on various dates and resulting in defamation of the plaintiff-respondents.

5. It appears that in the aforesaid suit of 2017, an order was passed on 13.7.2018 for proceeding under Order VIII Rule 10 CPC. An application 20C was filed for setting aside that order. The aforesaid application was dismissed on 1.10.2018. Thereafter, by means of an ex-parte judgment and order dated 18.5.2019, the suit was decreed. The petitioner then filed an application dated 1.7.2019 under Order IX Rule 13 read with section 151 CPC supported by his own affidavit. By means of an order dated 3.8.2022, the aforesaid application under Order IX Rule 13 CPC was dismissed.

6. The petitioner challenged the aforesaid order of 3.8.2022 by means of a Miscellaneous Appeal No.223 of 2022, which also came to be dismissed by means of the impugned judgment and order dated 15.2.2023.

7. The contention of the learned counsel for the petitioner is that the rejection of the application under Order IX Rule 13 is wholly unjustified as the petitioner could not attend the court on the dates due to genuine mistake and oversight, and also due to the fact that his son had fallen ill for an extended period of time. Learned counsel has referred at length to the order of the trial court to contend that without there being any evidence, the court recorded that during the suit, the attitude of the plaintiff was to delay the proceedings and he had displayed negligent conduct.

8. Learned counsel for the petitioner has also referred to the Annexure No.1 of the supplementary affidavit that has been filed today, which is a copy of the civil appeal filed under section 96 of the CPC against the judgment dated 18.5.2019 passed by the trial court. Learned counsel has contended that the aforesaid civil appeal was dismissed for non-prosecution on 30.9.2019 and for setting aside that order, an application 4C was filed by the defendant-appellant, which came to be allowed on 22.12.2021 subject to payment of cost of Rs.1000/-. However, due to unforeseen circumstances, the petitioner-defendant could not deposit the cost of Rs. 1000/- and, therefore, the appeal stood dismissed.

9. Learned counsel for the respondent h