D V H INDUSTRIES Vs. HARTLEY KNITS

JUDGEMENT

(1.) CM Nos. 10765/2009 and 10766/2009 in RFA 61/09 are (i) Application for condonation of delay in filing the appeal under Order XLI Rule 3 (A) Code of Code of Civil Procedure and Section 5 of the Limitation Act and (ii) Application for condonation of delay in refilling the appeal under Chapter 1(A) Rule 5(1) of the Delhi High Court Rules and Orders read with Section 5 of the Limitation Act and Section 151 of the Code of Code of Civil Procedure (for short the 'Code')

(2.) A suit framed as a suit for mandatory injunction claiming a decree for $ 1,27,085.50 with interest @ 20% p.a. was filed by Respondent No. 1 (Plaintiff). Vide Order of the learned Single Judge dated 26.5.2000, Respondent No. 1 was directed to pay ad-valorem court fee on the amount for which the decree was sought in the plaint. The deficiency in the court fee was made good; Defendants 1 and 2 put in appearance. Vide Order dated 31.10.2006 the name of original Defendant No. 1 was ordered to be deleted from the array of parties on the finding reached by the learned Single Judge that the plaint did not disclose any cause of action against him. Consequently Defendant No. 2 became Defendant No. 1 and Defendant No. 3 became Defendant No. 2 The Defendants preferred not to contest the proceedings despite service. They were, therefore, ordered to be proceeded ex-parte. Vide Order dated 12.10. 2007 of the learned Single Judge an ex-parte decree for an amount of $ 1,27,085.50 equivalent to Indian Rupees along with interest @ 7% p.a. from the date of institution of suit i.e. 29.2.2000 till the date of realisation came to be passed. The Appellant moved an application under Order IX Rule 13 of the Code for setting side of the said ex-parte decree. The application was dismissed by the learned Single Judge on 1.4.2009. The said order was unsuccessfully challenged in appeal which came to be dismissed in FAO(OS) No. 138/2009 on 13.5.2009. The Appellant has now preferred the Regular First Appeal to challenge the ex-parte decree dated 12.10.2007 on merits. Along with appeal two applications as aforesaid have been filed.

(3.) The grounds taken up by the Appellant are that the Appellant was informed by Respondent No. 2 that an ex-parte decree had been passed by the learned Single Judge on 10.12.2007. The mother of the President of the Appellant had expired on 12.12.2007 which took some time for making an inquiry about the proceeding. Immediately thereafter an application under Order IX Rule 13 of the Code was filed on 15.1.2008. The application was dismissed by the learned Single Judge on 1.4.2009 and the FAO was dismissed on 13.5.2009. It has been stated in the application that the Appellant had been advised to file Special Leave Petition challenging the order dated 13.5.2009 (during hearing it was stated that the SLP preferred by the Appellant has also been dismissed.) 4. It has been averred that the Appellant was diligently pursuing the remedy under Order IX Rule 13 of the Code and thus the delay of 478 days in filing the appeal may be condoned. The Appellant further prays for condoning the delay of 34 days in refilling the appeal due to certain objections pointed out by the Registry on the ground that the Appellant was permanently based in United States of America and it took time to contact him.