A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.

JUDGMENT :

Bibhu Datta Guru, J.

1. The petitioner preferred the present petition under Article 227 of the Constitution of India against the order dated 25.07.2018 passed by the Second Additional District Judge, Surajpur in Misc.Civil Appeal No. 04/2017, (Kamla Prasad Jaiswal Vs. Dola Das & Others) by which the appeal of the petitioner has been rejected and maintained the order dated 10.02.2017, passed by the Second Civil Judge Class-I, Surajpur, in Misc. Civil Suit No. 22/15, whereby an application moved by the petitioner under Order 9 Rule 13 of the CPC was rejected.

2. Case of the petitioner/defendant is that the respondent nos. 1 to 3/plaintiffs preferred a civil suit in the year 2002 against the defendant for permanent injunction and declaration of sale deed dated 08.07.1991 as null and void in respect of land bearing Khasra No. 604 area 0.482 hectare situated at Village- Podipa, Surajpur. According to the petitioner/defendant after service of notice he has appeared before the trial Court through his counsel on 11.12.2002. Thereafter, appeared on 19.02.2003 and 16.04.2003. When on 13.08.2003 neither the defendant nor his counsel appeared before the trial Court he was proceeded ex-parte. Subsequently, on 23.06.2008, the ex-parte decree was passed by the trial Court and the suit filed by the plaintiffs was allowed, whereby the sale deed executed in favour of the defendant on 08.07.1991 was declared as null and void. The defendant came to know about the ex-parte decree on 31.03.2009 when the notice was received from the Tehsildar Pilkha for mutation of the suit land in favour of the plaintiffs. Thereafter he obtained certified copy of the same on 28.04.2009 and moved an application under Order 9 Rule 13 CPC for setting aside the ex- parte decree. The same was rejected by the trial Court by order dated 10.02.2017. Against the said order the defendant approached the appellate Court by filing Misc. Civil Appeal No. 04/2017, which was also dismissed by the order impugned. Thus, this petition.

3. Learned counsel for the petitioner would submit that the petitioner came to know about the ex parte judgment of the trial Court when he received notice issued by the Tehsildar Pilkha on 31.03.2009. Learned counsel would submit that in the application under Order 9 Rule 13 of CPC , the petitioner explained cogent and sufficient reasons before the trial Court as also before the appellate Court, but the same has not been considered and appreciated in its true perspective. According to the petitioner, the default committed by his counsel, could not be shifted upon him. Learned counsel would submit that both the trial Court and the appellate Court have committed an error of law while rejecting the application moved by the petitioner under Order 9 Rule 13 of the CPC . In support of her contention, learned counsel would reliance upon the judgment rendered by the Supreme Court in the matter of Bhagmal & Others Vs. Kunwar Lal & Others reported in (2010) 12 SCC 159

4. On the other hand, learned counsel appearing for the plaintiffs/respondent Nos. 1 to 3 would support the impugned order passed by the trial Court and the appellate Court. Learned counsel would submit that the ex-parte judgment was passed by the trial Court on 13.06.2008, as the defendant as well as his counsel failed to appear before the trial Court from 2003 onwards. The petitioner moved the application under Order 9 Rule 13 CPC only on 05.05.2009 that too without explaining the plausible reasons. In support of his contention learned counsel would place reliance upon the decision rendered by the Supr