IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 10 OF JULY, 2024 WRIT PETITION No. 4466 of 2011 SMT. SEEMA NAYAK AND OTHERS Versus SUNIL JAIN AND OTHERS Appearance:

Shri Santosh Agarwal - Advocate for the petitioner.

None ORDER The present petition under Article 227 of the Constitution of India is preferred against the order dated 07.01.2010 passed in MJC No.10/2009 by IInd Civil Judge Class-I Ashoknagar, whereby an application under Order 9 Rule 13 CPC along with application under Section 5 of the Limitation Act for setting aside an ex parte judgment and decree dated 27.04.2004, was rejected. The petitioner is further aggrieved by order dated 25.02.2011 passed in M.A No.15/2010 passed by Ist Additional District Judge, Ashoknagar, whereby the appeal preferred against the order dated 07.01.2010 dismissing the application under Order 9 Rule 13 CPC, was dismissed and the order dated 07.01.2010 was affirmed.

2. Short facts of the case are that the present respondent no.1 had filed suit for recovery of money. In the suit it was averred that predecessor of the petitioner Gopal and Jagjit Singh arrayed as defendant no.1 and 2/plaintiff Signature Not Verified Signed by: CHANDNI respectively in the suit took some electronic goods of Rs.24,000/- from shop of plaintiff on 30.08.2000 and it was agreed that payment would be made up to 30.10.2000 and if the payment is not made, then 2% per month interest shall be charged upon this principal amount. It was further pleaded that a sum of Rs.5,000/- was paid to the plaintiff on 28.03.2001 and after adjusting the same a suit for recovery of Rs.39,080/- was filed.

3. A written statement was filed by defendant no.1 and plaint averments were denied in toto. Thereafter, defendants went ex parte and learned Trial Court after recording ex parte evidence decreed the suit and passed the decree for recovery of money from defendant no.1 and 2 jointly and severally for Rs. 39,080/- with 2% per month interest vide judgement and decree dated 27.04.2004.

4. On 11.08.2004 an application under Order 9 Rule 13 CPC r/w Section 5 of the Limitation Act was moved by defendant no.1 Gopal. In the application it was averred that vide order dated 11.03.2003 defendant no.2 Jagjit Singh was proceeded ex parte as even after service of notice, he didn't appeared nor any counsel on his behalf appeared in the matter and, thereafter, on 19.12.2002 defendant no.1 had filed his written statement, but later on vide order dated 04.11.2003 he was also proceeded ex parte and, thereafter, vide proceedings dated 29.11.2003 the matter was listed for ex parte evidence of the plaintiff and on 10.03.2004 the evidence of plaintiff's witnesses were recorded and the matter was listed for final hearing on 25.03.2008 and, thereafter, vide judgment and decree dated 27.04.2004. the impugned order came to be passed.

Signature Not Verified Signed by: CHANDNI

5. It was further averred that on 04.11.2003 due to illness defendant no.1 could not remain present before the Court and after filing of the written statement, it was told to him by the counsel that there is no need of him to appear and whenever the matter would be listed for evidence, he would be called. It was further averred that the counsel since 04.11.2003 did not appeared in the matter nor informed about the dates and it was only vide note-sheet dated 30.07.2004 that the defendant no.1 came to know that he had been proceeded ex parte vide order dated 04.11.2003, when he took out the certified copy of the proceedings.

6. Further in the application it was averred that on 15.07.2004 when defendant no.1 had went to Bhopal for getting treatment of her mother and on 20.07.2004 when he returned back, a summons of the Court was served upon him from where it came to his knowledge that judgment and decree had been passed against him and it was notice of execution, therefore, for the first time on 21.07.2004 he had acquired the knowledge of ex parte