O R D E R

% 05.08.2024 I.A. 5267/2023(for exemption from filing fair typed copies of dim annexures)

1. The registry will inform the defendants with respect to the dim annexures within two weeks.

2. Defendants shall thereafter file legible and clearer copies of the dim annexures, compliant with practice rules, before the next date of hearing.

3. With the aforesaid direction, the application stands disposed of.

I.A. 5266/2023 (by defendants under Order VII Rule 11 of CPC)

4. Issue notice.

5. Learned counsel for the plaintiff accepts notice on behalf of the plaintiff. Reply be filed within four weeks. Rejoinder thereto, if any, be filed four weeks thereafter.

CS(OS) 616/2022 Page 1 of 12 I.A. 18146/2022 (by plaintiff seeking a decree in default), I.A. 22179/2022 (by defendants for condoning the delay of 28 days in filing leave to defend) & I.A. 21526/2022 (by plaintiff seeking clarification qua order dated

18.10.2022)

6. The plaintiff has filed I.A. No. 18146/2022 under Order XXXVII Rule 2(3) of The Code of Civil Procedure, 1908 (‘CPC’) seeking a decree in default against the defendants. Submissions on behalf of Plaintiff

7. The learned counsel for the plaintiff contends that in pursuance to the advance service of the suit paper-book on the defendants in September 2022, one Mr. Girijesh Pandey, Advocate appeared on behalf of the defendants on 18.10.2022 at the hearing held before the learned Joint Registrar (J). He states that consequently summons for appearance through Court process under Order XXXVII Rule 2(2) CPC was not issued to the defendants as Mr. Girijesh Pandey, Advocate accepted summons.

8.1 He states that, however, Mr. Girijesh Pandey and/or defendants failed to file a memo of appearance as per the mandate of Order XXXVII Rule 3(1) of CPC within ten days and, therefore, the plaintiff herein is entitled to seek a default decree against the defendants on the presumption of deemed admissions of the averments in the plaint.

8.2 He states that this application has been filed by the plaintiff at the earliest on 02.11.2022.

8.3 He fairly concedes that Mr. Girijesh Pandey, Advocate has not filed any vakalatnama or memo of appearance on record authorizing his appearance on 18.10.2022.

8.4 He states that the defendants’ denial as regards the engagement of Sh. Girijesh Pandey, Advocate for his appearance on 18.10.2022 is not bona fide. He relies upon the reply affidavit filed by Mr. Girijesh Pandey, CS(OS) 616/2022 Page 2 of 12 Advocate dated 09.01.2023 in I.A. No. 21526/2022 to contend that Mr. Girijesh Pandey appeared on the oral instructions of the defendants. He states that due to this wrongful denial, the application of the defendants i.e., I.A. No. 22179/2022 seeking condonation of delay ought to be dismissed.

Submissions on behalf of Defendants

9. The learned counsel for the defendants contends that defendants learnt about the institution of the suit upon receipt of notice in I.A. No. 18146/2022. She states that notice in I.A. No. 18146/2022 was issued by the Court on 09.11.2022 and was served on the defendants on 25.11.2022 through e-mail and on 05.12.2022 through post. She states that thereafter, defendants filed I.A. No. 22178/2022 under Order XXXVII Rule 3(5) of CPC on 23.12.2022 seeking leave to defend, alongwith I.A. No. 22179/2022 seeking condonation of delay of 28 days in filing I.A. No.22178/2022 [application seeking leave to defend].

9.1 She states that Mr. Girijesh Pandey, Advocate was not engaged by the defendants to enter appearance in these proceedings on 18.10.2022. She states that it is a matter of record that no vakalatnama was executed by the defendants in favour of Mr. Girijesh Pandey, Advocate authorizing his appearance for 18.10.2022.

9.2 She states that upon receipt of advance service of the suit paper-book on 23.09.2022, the defendants, who are resident(s) of District Gonda in Uttar Pradesh contacted a lawyer Mr. Vijay Tiwari practicing in Lucknow for his advice. She states that while it is correct that Mr. Vijay Tiwa