[1]

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

JUDGMENT

M/s. SREI International Finance Limited

Vs.

Ashok Kumar

S.B. CIVIL MISC. APPEAL NO. 1606/2013

Date of Judgment:

November 28,

2014.

PRESENT

HON'BLE MR. JUSTICE P.K. LOHRA, J.

Mr. S.D. Vyas with Mr. P.S. Chundawat, for the appellant.

Mr. Vikas Balia, for the respondent.

Reportable

BY THE COURT:

Appellant-defendant has laid this appeal under

Order 43 Rule 1(d) read with Section 104 of the Code of

Civil Procedure (for short, ‘CPC’) assailing the order dated

26^th of July 2013 passed by Addl. District Judge,

Rajsamand, whereby its application under Order 9 Rule

13 read with Section 151 CPC for setting aside ex-parte

decree dated 19^th January 2006 was rejected.

Succinctly stated, the facts of the case are that

respondent-plaintiff instituted a civil suit against

[2]

appellant for recovery of a sum of Rs.1,60,155 before

learned trial Court, wherein besides money decree he also

prayed for relief of perpetual injunction. The suit was

initially contested by appellant and its cause was pleaded

by a lawyer but subsequently due to absence of appellant

as well as its lawyer, at the threshold ex-parte

proceedings were taken against it on 17.11.2005 and

eventually the suit was decreed ex-parte on 17^th of

February 2006. For setting aside ex-parte decree,

appellant company made endeavor by laying application

under Order 9 Rule 13 read with Section 151 CPC on 10^th

of February 2009. The said application was preferred by

appellant after delay of three years from the date of

passing of ex-parte judgment and decree, therefore, an

endeavor was made at its behest for seeking condonation

of delay by way of laying application under Section 5 of

the Limitation Act. In its application, the appellant

company has inter-alia averred that on its behalf a lawyer

was engaged, who was entrusted the brief, but of his own

volition he has not appeared before the learned trial

Court on 17.11.2005 and therefore the learned Court

below proceeded ex-parte against the appellant and its

right to file written statement was forfeited. Finally, the

learned trial Court passed the ex-parte decree.

[3]

Appellant set out a specific case in its application that the

lawyer representing their cause before the learned trial

Court assured that as and when any assistance would be

required by company, requisite information would be

furnished to it but no such information was divulged by

the counsel. With these averments, the appellant has

pleaded that there were good and sufficient reasons for

absence of the appellant on 17.11.2005 as well as on

19.01.2006. Attributing callousness and total apathy on

part of the lawyer representing its cause, appellant has

averred in the application that it came to know about the

ex-parte judgment and decree on 6^th of February 2009

and immediately requisite application for obtaining

certified copy was filed and after obtaining certified copy

on 7^th February 2009, the application has been filed for

setting aside ex-parte decree. For seeking condonation

of delay in belated presentation of application under

Order 9 Rule 13 CPC, appellant has pleaded the same

facts. In support of both the applications, on behalf of

appellant company, affidavit of its Manager (Law) was

submitted.

The respondent-plaintiff contested the

application for setting aside ex-parte judgment and

[4]

decree and submitted its reply refuting all the averments.

On behalf of respondent, a separate reply was also

submitted to counter the averments contained in

application under Section 5 of the Limitation Act. In

reply, on behalf of respondent, it is pleaded with

emphasis that appellant company had full knowledge

about the proceedings in the suit and it was aware about

passing of the ex-parte decree. The respondent h