Delhi High Court
Ashok Maharaj & Ors. vs Virender & Ors. on 27 January, 1998
Equivalent citations: 1998IIIAD(DELHI)67, 72(1998)DLT591, 1998 A I H C 2213, (1998) 72 DLT 591
Author: K.S. Gupta
Bench: K.S. Gupta
ORDER
I.A. No. 10328/97 in Suit No. 2137/95
1. Defendants 1-3 have filed the application under Order IX Rule 13 read with Section 151 CPC alleging that the defendants (2) was present outside the court and waiting for the counsel when the ex-paste order was passed by the Joint Registrar. Joint Registrar did not clarify the order and the matter appeared to be adjourned and the defendants counsel continued to appear so the subsequent dated of hearing Non-appearance of the defendants was neither deliberate nor intentional. Counsel of the defendants entrusted the application for being filed in the Registry to his Clerk but he did not do so. It is prayed that the ex-parte order passed by the Joint Register may be set aside.
2. Plaintiff have contested the application by filing a detailed reply. It is alleged that the application is not maintainable under the provision of Order IX Rule 13 CPC ask decree is yet to be passed against the defend- ants. With the intention of delaying the case defendants deliberately did not file the application for setting aside the ex-parte order dated July 12, 1996 for more than one year of its passing Application also does not disclose sufficient ground for the defendants non-appearance on July 12, 1996 when they were proceeded ex-parte by the court. It is emphatically ended that the ex-prate order was passed by the Joint Registrar and the defendant was present outside the court room as alleged.
3. I have heard the learned counsel for the parties and have been taken though the record.
4. I would like to refer to some of the orders passed in the suit. By the order passed in the suit. By the order dated March 11, 1996, April 18, 1996 was fixed for completing admission/denial before the Joint Register and the case was to come up before the court for settlement of issues on July 12, 1996. As is evident from the order dated April 18, 1996, passed by the Joint Registrar two weeks time was allowed to the parties to file documents in the Registry. On case being taken up for completing admission/denial by the Joint Registrar on May 22, 1996, defendant No. 1 appear in person before him and sought pass over till 12 Noon to enable him to call the counsel which was allowed. Since defendant No. 1 did not turn up beyond 12 Noon, admission/denial of the documents could not be carried out from the side of the defendants. Thereafter on July 12, 1996 none appeared on behalf of the defendants until 2.20 PM therefore they were proceeded ex-parte. Plaintiffs were permitted to lead evidence on affidavit within four weeks and the case was postponed to September 16, 1996. On September 16, 1996 Shri B.P. Sharma appeared for the defendants and informed the court that he is moving an application for setting aside the ex-parte order dated July 12, 1996 and the case was postponed to February 21, 1997. As the plaintiff was found to have filed the affidavit by way of ex-parte evidence the case was adjourned on February 21, 1997 to August 14, 1997 for argument. On August 14, 1997 Shri B.P. Sharma again appeared for the defendants and stated that an application for meeting aside the ex-parte order had been filed by him yesterday in the Registry. Since the application was not placed on the file he was directed to check up with the Registry and I have the same placed on the file and the case was adjourned to October 24, 1997. On that date plaintiff were allowed four weeks time to file reply which they did. Indisputable present I.A. was filed by the defendants October 23, 1997.
5. Coming to the merits of the application, the defendants have sought the meeting aside of the ex-parte order passed by the Joint Registrar without specifying the date thereof. However, the Joint Registrar did not pass any ex-parte order against the defendants either on April 18, 1996 or May 22, 1996. It was the court which [passed the ex-parte order on July 12, 1996. Significantly application is completely silent in regard to the defendants' non-appearance in court at the time the case was taken up on July 12, 1996 nor does it discloses any ground whatsoever which prevented the defendants from attending the court on the said date. That being so, defendants must be held to have failed to assign good cause for recalling the aforesaid order dated July 2, 1996.
6. Needless to say that in the reply plaintiff have also taken the plea that the application having been filed more than year after the passing of the ex-parte order is not legally maintainable. Provisions contained in Rule 7 Order IX CPC which is relevant provides as under :-
"Where the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing, appear and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
7. Limitation Act does not provide for any limitation of filing an appli- cation for setting aside an ex-parte order passed under aforesaid Rule 7. Words "at or before used in the aforesaid Rule clearly go to indicate that an application for setting aside ex-prate order is to be filed latest before the date to which the case is adjourned after the passing of the ex- parte order. Present application which was admittedly filed on October 23, 1997 after many dates of the passing of the ex-parte order dated July 12, 1996, is thus, not legally tenable under the aforesaid Rule.
8. Application, therefore, deserves to be dismissed on both the said counts.
9. Application is accordingly dismissed with Rs. 500/- as costs.