ISHWAR INDUSTRIES LIMITED Vs. NULON INDIA LIMITED

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 5th November 2007 passed by learned trial court whereby an application of the petitioner under Order XLI Rule 3A CPC read with Section 5 of Limitation Act for condonation of delay of 460 days in filing the appeal was dismissed.

(2.) THE petitioner had suffered an ex parte judgment and decree dated 30th October 2005. This ex parte judgment and decree was suffered by the petitioner deliberately since the petitioner was not only served summons of the suit but petitioner made an application under Order 1 Rule 10 CPC before the Civil Judge making averments therein that he was not a necessary party in the suit and the petitioner's name should be dropped from the array of parties. This application of the petitioner was dismissed by the Civil Judge. After dismissal of this application, the petitioner did not contest the suit and the suit was decreed ex parte. The petitioner preferred an appeal against the judgment and decree with a delay of 460 days. The grounds stated in the application for condonation of delay were that the petitioner had no knowledge of being proceeded ex parte and he had no means to discover the fate of the suit proceedings as no notice was received from the court or from the respondent about the suit having been decreed. The petitioner all along was under the impression that the other defendant namely Growth Technical Pvt. Ltd would settle the matter with the plaintiff, but the other defendants colluded with the plaintiff and the decree was passed at the back of the petitioner.

(3.) IT is submitted by counsel for petitioner that the respondent had filed three other suits of similar nature against the petitioner and these suits were dismissed. This was the fourth suit. The petitioner was given wrong advice by the counsel to move an application under Order 1 Rule 10 CPC and due to this wrong advice, he did not appear in the case and, therefore, did not come to know the result of the suit and suffered the decree.