(O R D E R)

03 .03.2021

This Misc. Petition has been filed by the petitioner/defendant under Article 227 of the Constitution of India against the orders dated

7.5.2018 (Annexure P-6) and 22.6.2018 (Annexure P-9).

2. The respondent filed a suit for eviction based on various grounds mentioned in Section 12 of the M.P. Accommodation Control Act, 1961. The suit was dismissed by the judgment and decree dated 10.4.2015 (Annexure P- 1). The plaintiff feeling aggrieved with the said judgment and decree assailed it in an appeal, which was allowed by the judgment and decree dated 10.4.2017. The matter was remitted back on a limited point to the trial Court and the plaintiff was permitted to adduce additional evidence in respect of rent agreement ‘Kiraya-nama’.

3. After remand, the plaintiff adduced evidence on 6.5.2017 and thereafter the matter was fixed for defendant’s evidence. Since the counsel for the defendant remained absent on more than one occasion, the trial Court proceeded ex-parte on 11.7.2017 against the petitioner/defendant and thereafter passed the judgment and decree against the petitioner on

23.10.2017.

4. Petitioner filed an application under Order 9 Rule 13 of CPC along with an application under Section 5 of the Limitation Act (Annexure P-4) for setting aside the ex-parte decree. In turn, the respondent/plaintiff filed his reply (Annexure P-5). The trial Court by order dated 7.5.2018 rejected the application for condonation of delay. As a consequence thereof the application filed under Order 9 Rule 13 of CPC was also dismissed. Aggrieved, petitioner filed Misc. Appeal under Order 43 Rule 1 of CPC (Annexure P-7). Reply thereof filed by other side is Annexure P-8. The appellate Court by order dated 22.6.2018 (Annexure P-9) dismissed the Misc. Appeal. These orders dated 7.5.2018 (Annexure P-6) and 22.6.2018 (Annexure P-9) are called in question in this writ petition filed under

Article 227 of the Constitution of India.

5. Shri Sanjay Sarwate, learned counsel for the petitioner raised two fold submissions:-

(i) Petitioner/defendant participated in the proceedings before the trial Court on various dates. However, because of negligence of counsel for the defendant, he remained absent on certain dates. Petitioner/defendant was not aware about this development and dates. He cannot be made to suffer for a mistake committed by his lawyer. Reliance is placed on 1981

(Rafiq Vs. Munshilal)

(ii) Both the courts below declined to condone the delay by holding that each day’s delay needs to be explained, which has not been explained. Hence the delay cannot be condoned. This finding of the courts below runs contrary to the judgment of the Supreme Court passed in Civil Ummer Vs. Pottengal Subida & others Chandra

Kumar Vs. Prahlad Kumar

6. In nutshell, learned counsel for the petitioner submits that the delay was also not enormous. The delay was properly explained. The courts below have passed the impugned orders by applying incorrect parameters.

7. Per contra, Shri Abdul Waheed Choudhary, learned counsel for the respondent supported the impugned orders. By taking this Court to the order sheets of the trial Court Shri Choudhary urged that the defendant remained absent on various dates. In view of the conduct of the defendant whereby he adopted dilatory tactics, no interference may be made in the present case. The petitioner had full knowledge about the proceedings and entered appearance through his counsel, he cannot be permitted to take a different stand that he was not aware about the proceedings. He has also placed reliance on Article 123 of the Limitation Act in support of his submissions.

8. Parties have confined their arguments to the extent indicated above.

9. I have heard the learned counsel for the parties at length and perused the record.

10. Undisputedly, the petitioner remained absent on more than one occasion before the trial Court. The court below proceeded ex-parte against the petitioner and then heard and decided the matter on merits. The