TIMANLAL SAHU Vs. SHIVCHARAN LAI SAHU

JUDGEMENT

(1.) By this petition under Section 115, Civil Procedure Code, the applicant/plaintiff seeks to challenge the correctness, validity and propriety of the order dated 21.12.1998 passed in M.J.C. No. 17 of 1993 by learned Fourth Additional District Judge, Bilaspur, setting aside the ex-parte decree passed in favour of the present applicant in Civil Suit No. 32-A of 1990.

(2.) It is not in dispute before me that the present plaintiff filed Civil Suit No. 32-A of 1990. In the said suit the summons were duly served upon the defendant who made his appearance through his Counsel but later on proposed to remain ex-parte, therefore, vide order dated 30-1-1992 the Court proceeded ex- parte, recorded ex parte evidence of the plaintiff and his witnesses and delivered the ex-parte judgment on 24-8-1992.

(3.) Almost after about one year of the ex- parte judgment and decree the defendant/non- applicant made an application under Order 9 Rule 13, C.P.C. seeking the relief of setting aside of the ex parte judgment and decree. Along with the said application an application under Section 5 of the limitation Act, 1963 was also filed. In the said applications it was inter alia pleaded that the applicant was informed by his Counsel that the suit stood dismissed, therefore, misinterpreting the word that the two suits which were pending trial have been dismissed the defendant stopped appearing in the Court. It is not dispute before me that against the present applicant Civil Suit Nos. 32-A of 1990 and 36-A of 1989 (old No. 23A of 1976) were pending. It is also not in dispute before me that both the suits were to be decided simultaneously but Civil Suit No. 36A of 1989 was dismissed for want of prosecution. The defendant submitted before the Trial Court that it was informed by his Counsel that the suit was dismissed, therefore, he took it for granted that both the suits were dismissed. But as he was later on told that Civil Suit No. 36-A of 1989 alone was dismissed and an ex-parte decree was granted aginast him in Civil Suit No. 320A of 1990 he was required to make an application for setting aside ex-parte decree. In support of the application the defendant filed his affidavit but as the allegations were controverted by the plaintiff the Trial Court made an enquiry into the subject. The defendant apart from examining his own self also examined his witnesses in support of his contention; the plaintiff did not choose to enter in the witness box. The Trial Court after hearing the parties came to the conclusion that the applicant was prevented by sufficient cause from making his appearance at the time when the suit was taken up for hearing and as there was further sufficient cause for not making an application in time the delay in making the application for setting aside the ex-parte decree deserved to be condoned. It accordingly allowed both the applications, condoned the delay and set aside the ex-parte decree. Being aggrieved by the said order dated 21.12.1998 the plaintiff/decree holder has come to this Court challenging the correctness, validity and propriety of the said order.