Rajasthan High Court - Jaipur
Chhitar Mal Saini vs Basanti And Others on 4 December, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Misc. Appeal No.1777/2012 Chhitar Mal Saini vs. Basanti & Anr. Date of Order::04.12.2013 Hon'ble Ms. Justice Bela M. Trivedi Mr. Mahesh Gupta, for the appellant. Mr. S.R. Saini, for the respondents. BY THE COURT :
1. The present appeal filed under Order XLIII Rule 1(d) of Civil Procedure Code, 1908 is directed against the order dated 2nd February, 2012 passed by the Additional District and Sessions Judge (Fast Track) No.2, Sikar (hereinafter referred to as 'the Trial Court') in Civil Misc. Case No. 25 of 2009, whereby the Trial Court has dismissed the application of the appellant-defendant filed under Order IX Rule 13 of CPC for setting aside the exparte decree dated 7th February, 2005 passed in Civil Suit No.60/01(3/2000).
2. In the instant case, it appears that the respondents-plaintiffs had filed the suit seeking compensation against the appellant-defendant for the death of Ramkumar, who happened to be the father of the respondents-plaintiffs, and for the death of Murlidhar, who happened to be the brother of the respondents-plaintiffs. Initially the said suit was filed in the Court of Neem Ka Thana, and subsequently the said suit was transferred to the Court of Sri Madhopur. According to the appellant, he had engaged an Advocate named Rajendra Gupta at Neem Ka Thana, who had filed his appearance, and also remained present before the Court, however, after the transfer of the case from Neem Ka Thana to Sri Madhopur, the said Advocate did not remain present, as a result thereof, the Trial Court passed the exparte judgment and decree dated 7th February, 2005, awarding compensation of Rs.2,25,000/- for the death of Ramkumar and Rs.2,00,000/- for the death of Murlidhar. The appellant, having come to know about the said decree, had filed the application under Order IX Rule 13 for setting aside the said decree, however, the said application has been dismissed by the Trial Court vide the impugned order dated 2nd February, 2012.
3. It has been sought to be submitted by the learned counsel Mr. Mahesh Gupta for the appellant that it was sheer negligence on the part of the concerned Advocate, who did not remain present before the Trial Court, which resulted into an exparte decree against the appellant. He submitted that the appellant should not be made to suffer on account of the fault on the part of the lawyer.
4. However, the learned counsel Mr. S.R. Saini for the respondents submitted that the appellant, having been duly served with the summons in the suit, and having also engaged the lawyer, had deliberately remained absent, and did not attend the suit proceedings.
5. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order dated 2nd February, 2012, as well as the decree dated 7th February, 2005, it transpires that the concerned counsel engaged by the appellant had appeared in the suit, and also filed an application under Order VII Rule 11 CPC, which was dismissed by the Trial Court. However, thereafter neither the appellant nor his Advocate bothered to file written statement in the suit. It also appears that the Trial Court had given sufficient opportunity to the appellant to remain present, and contest the suit, however, the appellant deliberately did not attend the suit proceedings. Though it was sought to be submitted by the learned counsel for the appellant that there was negligence on the the concerned lawyer, the said submission cannot be accepted for the simple reason that the appellant has not taken any action against the concerned lawyer for remaining negligent. Hence, the only conclusion, which could be drawn, would be that appellant himself had remained negligent in attending the suit proceedings. There being no sufficient cause for setting aside the decree in question, the Trial Court has rightly dismissed the application of the appellant under Order IX Rule 13 of CPC . The order impugned being just and proper, the Court is not inclined to interfere with the same.
6. In that view of the matter, the present Civil Misc. Appeal being devoid of merits deserves to be dismissed, and is accordingly dismissed.
(Bela M. Trivedi) J.
Sanjay Solanki JrPA All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Sanjay Solanki Jr. Personal Assistant