Whether approved for reporting?¹Whether reporters of the local papers may be allowed to see the judgment?

Romesh Verma, Judge (Oral).

1. The present petition arises out of the order as passed by the learned Senior Civil Judge, Nalagarh, District Solan, H.P., on 14.02.2025, whereby the application filed by the present respondent/defendant under the provisions of Order 9, Rule 13 of Code of Civil Procedure read with Section 5 of the Limitation Act has been allowed.

2. Brief facts of the case are that the present petitioner/plaintiff has filed a suit for recovery of Rs.11,87,025/- against the present respondent/defendant. The said suit was instituted before the learned trial Court on the ground that the plaintiff purchased one number ceiling fan rotor turning CNC SPM machine from the defendant through invoice No.064, dated 31.03.2016, for an amount of Rs.12,49,500/- and the same was delivered by the defendant to the plaintiff on 18.04.2016. That the plaintiff had already paid Rs.11,87,025/- to the defendant upto 07.04.2016 in advance and the remaining amount was payable to the defendant after getting a trial of smooth working of the said machine and the defendant was legally liable to get the said machine in smooth working. The plaintiff installed the aforesaid machine supplied by the defendant, but the aforesaid machine could not work since the day of its installation and the plaintiff was loosing its production and was incurring financial losses on day to day basis due to non working of aforesaid machine. Therefore, the plaintiff filed the suit for recovery of Rs.11,87,025/- against the defendant/present respondent.

3. The defendant was served and on 24.07.2017, time was sought by the defendant for filing of the written statement. On the said date Mr. R.D. Thakur, Advocate, appeared on behalf of the defendant and power of attorney was filed by him on behalf of the defendant. Thereafter, the case was listed on different dates. The defendant/present respondent filed an application under the provisions of Order 7, Rule 11(d) of the CPC for the rejection of the plaint. Vide its order dated 18.09.2018, the learned trial Court dismissed the said application. It is matter of record that the said order was assailed before this Court and the findings as returned by the learned trial Court were affirmed by this Court.

4. On 19.11.2018, the learned trial Court framed the issues in the matter and thereafter the case was fixed for leading of evidence by the parties. Till 14.11.2019, Mr. R.D. Thakur, Advocate vice Mr. V.V. Narshimha Rao, Advocate was appearing on behalf of the defendant. On 13.01.2020, Mr. Rajesh Chaudhary, Advocate filed memo of appearance on behalf of the defendant. Thereafter, on 05.08.2022, none appeared on behalf of the defendant, consequently, the defendant was proceeded against ex-parte. Thereafter, the learned trial Court on 03.08.2023, had passed an ex-parte decree in favour of the present petitioner/plaintiff against the respondent/defendant.

5. The present respondent/defendant filed an application under Order 9, Rule 13 of the CPC read with Section 5 of the Limitation Act before the learned trial Court on 20.08.2024. It has been averred in the application that the applicant/respondent had engaged Shri R.D. Thakur, Advocate, and he filed his written statement in the proceedings. He was actively participating in the proceedings of the case. As and when his counsel Mr. R.K. Thakur called him and asked to appear before the Court, he was doing so. That subsequently, the applicant/defendant engaged Shri Rajesh Chaudhary, Advocate, by handing over him the papers of the case including power of attorney. On 13.01.2020, Shri Rajesh Chaudhary, Advocate, put his appearance on behalf of the defendant by filing power of attorney but did not file regular power of attorney on behalf of the defendant.

6. As per defendant, Shri Rajesh Chaudhary, Advocate did not appear on 20.08.2020 and