This appeal has been filed under order 43 rule 1 (d) of the CPC. against the order dated 12th July, 2002 of the 10th ADJ, Bhopal in MJC No. 15/2001 by which learned Judge has rejected the application of the appellant under order 9 rule 13 of the CPC as also the application under section 5 of the Limitation Act.

The respondent had filed the civil suit No. 116-A/2000 before the Add!. Dist. Judge, Bhopal against the appellants for possession and mesne profits in which 18.1.2001 was fixed for defendant's evidence. Since the defendants (appellants) did not appear nor their counsel appeared on that date, the case was proceeded ex-parte and on 1.2.2001 the judgment was pronounced. On learning about the ex-parte decree the appellants filed the application under order 9 rule 13 of the CPC on 18.4.200 I and later. on 28.9.2001, an application was filed under section 5 of the Limitation Act to seek condo-nation of delay in filing the application under order 9 rule 13. Both these applications have been disposed by the trial Court by the impugned order.

Learned counsel for the appellant has submitted that the appellant Abdul Aziz was 80 years old and an infirm person under medical treatment and it was not possible for him to keep himself abreast of the proceedings and he was therefore dependant on his counsel and other relations. He has further submitted that the appellant had engaged Shri Vijay Gupta, Advocate but Shri Vijay Gupta expired and thereafter the matter was not properly handled by the other advocates who appeared from his office with the result the appellant suffered an ex-parte decree and therefore the judgment and decree passed ex-parte deserve to be set aside. Reference has also been made to the decision of the Supreme Court in Raymond Services Pvt. Ltd. v. S. Kapoor [AIR 2001, Supreme Court 207]. Learned counsel for the respondents, per-contra, has submitted that there was no cause, much less sufficient, for setting aside the ex-parte decree. The evidence on record indicates that the defendants were aware of the proceedings in the case and therefore it was on account of their willful abstinence that the case proceeded ex-parte against them and no case was made out for setting aside the ex-parte decree.

The short question that arises for consideration in this appeal is as to whether there was sufficient cause for setting aside the ex-parte decree passed by the Trial Court on 1.2.2001 in the civil suit.

The grounds urged by the appellants for setting aside the ex-parte decree are -(A) That, the appellant Abdul Aziz is 80 years old and is an infirm person unable to himself to manage his affairs;

(B) That, Abdul Aziz was under treatment and therefore prevented from attending the proceedings of the case.

(C) That, Advocate Shri V. Gupta who had been engaged in the case had expired during the pendency of the suit.

(D) That the junior advocates of the Advocate Shri Vijay Gupta, after the death of Shri V. Gupta had informed them that the matter was pending in the High Court and it was not necessary for them to attend the hearing of the case.

The applicant Abdul Aziz examined himself and also examined Abdul Azim, Ifketar Ahmed, Mukteyaruddin, Abdul Aziz, Dr. RK. Bhargav and Dr. RK. Jain to prove the case of the appellants while non-applicants examined 2 witnesses in rebuttal. It has not been disputed that age of Abdul Aziz is about 80 years and it has also come in evidence that he was under treatment of Dr. RK. Bhargav (A W-6) and Dr. RK. Jain (A W-7) Dr. R.K. Bhargav has deposed that Abdul Aziz was a patient of hyper-tension and he had suffered a heart attack and was suffering from pain in the joints. He has also exhibited the certificates issued by him in this behalf. Dr. RK. Jain, eye-specialist, has referred to the Diabetic Retino Pathy of Abdul Aziz and exhibited his certificate P-36. Therefore, there is no room for doubt that Abdul Aziz being old and infirm was unable to look after his affairs himself