DEVRAJ ALIAS DEV RAI Vs. UMA DEVI

JUDGEMENT

(1.) THE appellant/defendant has preferred this miscellaneous appeal against the order dated 14-12-2004 passed in Miscellaneous Civil Case No.03/2004 whereby the 2nd Additional District Judge, (F.T.C.), Mungeli has rejected the applications under Order 9 Rule 13 C.P.C. and under Section 5 of the Limitation Act for setting aside the ex parte judgment and decree dated 22-04-2002 passed in Civil Suit N0.8-A/1999 and for condonation of delay in filing the application under Order 9 Rule 13 C.P.C.

(2.) IT is not disputed in this appeal that a suit for specific performance of contract was filed by the respondent/plaintiff against the appellant/defendant before the 2nd Additional District Judge, (F.T.C.), Mungeli in which the appellant/defendant was served with the summons and was being represented by counsel till 29-01 -2001. It is also not in dispute that on 29-01 -2001 upon pleading no instructions by the counsel for the appellant/defendant, the Court proceeded ex-parte against the appellant/defendant. Ex parte judgment and decree was passed on 22-04-2002. Applications under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act were filed on 25-06-2002 by the appellant/defendant in the Court below wherein it was mentioned by the appellant/defendant that after engaging counsel to defend him in the suit, on account of a draught he had left for Kanpur for earning his livelihood. On returning from Kanpur on 23-04-2002, he learnt that ex parte judgment and decree was passed against him in Civil Suit N0.O8-A/1999 on 22-04-2002, and thereafter, he promptly applied for certified copy of the said judgment and decree on 24-04-2002. It was delivered to him on 07-05-2002 and thereafter from 14-05-2002 due to summer vacation in the Courts and till 24-06-2002, the presiding judge being on leave, application under Order 9 Rule 13 C.P.C. could not be filed. On these premises, it was prayed that the delay in filing the application under Order 9 Rule 13 C.P.C. be condoned.

(3.) THE appellant/defendant examined himself as A.W. 1 and witnesses Sadhram, A.W.2 and Shivbagas, A.W.3. in support of the application under Order 9 Rule 13 C.P.C. The respondent/plaintiff examined herself as N.A.W.1 and Banshidas,N.A.W.2.