S.R. Battery & Electricals vs . Qureshi Oxide & Chemicals on 6 May, 2014
The aforesaid judgment in the case of Sagayam Engineering Works Vs. Srivatsa Tube Corporation (supra) and Rafiq Vs. Munshilal (supra), to my mind, are however not apposite to the facts of the present case. In the instant case, as held by the trial court the defendant was very much aware of the proceedings of the money suit and initially he did not comply with the condition of the order dated 23-11-2005 passed by the trial court consequent to which the ex-parte order dated 15-10-2005 was revived. Thereafter in spite of receiving warrants on 18-11-2008 and obtaining certified copies of the order on 25-11-2008 he filed the Order 9 Rule 13 application only on 18-12-2008. Indulgence of the court once having been availed, the defendant ought to have been vigilant. Reckless negligence in thereafter being not present to facilitate the conduct of proceedings in the suit of the plaintiff can only be attributed to deliberation of the defendant. The judicial process cannot be stalled. Ex parte decree rightly followed against the defendant. The learned trial court has rightly not found the cause for delayed filing to be a sufficient cause both under Section 5 of the Limitation Act and under Order 9 Rule 13 CPC. Article 123 of the Limitation Act, clearly provides that an application for setting aside an ex-parte decree passed subsequent to service of summons shall be filed within 30 days. Further the defendant has wrongly levelled allegations against an Advocate, which cannot be countenanced in absence of any suitable action against such an advocate on behalf of the defendant. Advocate cannot be used as a shield in court by the litigants.