NEW BANK OF INDIA HAVING ITS HO 1 TOLSTOY MARG NEW DELHI Vs. MARVELS INDIA L 18 KAILASH COLONY NEW DELHI

JUDGEMENT

(1.) This Suit was filed by the plaintiff-Bank for recovery of money against the. defendants, who are five in numbers, in the year 1985. The defendants 1,2 and 5 after service of summons, did not appear and were proceeded ex parte. The defendants 3 and 4 although appeared initially and contested the Suit, stopped appearing after a particular period. They were also proceeded ex-parte and ex-parte decree was passed on 3/10/1997. However, the plaintiff has not been able to enjoy the fruits of this decree and even after 16 years of the filing of the Suit the matter is kept alive by the defendants 3 and 4 (hereinafter referred to as the applicants, for short) as the present application has been filed under the provisions of Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree dated 3/10/1997. Obviously, the question to be determined in this application is as to whether there is sufficient cause for non-appearance of the applicants in the Suit proceedings. The plea in support of sufficient cause raised by the applicants is the one which is often taken, namely, fault on the part of their advocate and it is contended that the applicants should not be made to suffer due to the fault of their advocate, whether such a plea is available to the applicants in the facts and circumstances of this case needs to be examined.

(2.) Before embarking on this enquiry it would be appropriate to note certain material dates ;- <FRM>JUDGEMENT_45_ILRDLH6_2001Html1.htm</FRM> It is stated in the application that the applicants had engaged an advocate who without notice to the applicants suddenly stopped appearing from 2/04/1991 and did not appear in spite of default notice sent to him. In the meanwhile, whenever the applicants enquired about their case they were informed that the matter is listed for evidence and as and when the applicants were required to be there, an intimation from the Office, of the lawyer would be sent. In spite of those assurances the lawyer did not appear and the applicants suffered ex-parte decree and that. such non-appearance of the applicants constitutes sufficient cause as it was bonafide. The applicants came to know about the ex-parte decree only when the applicants received letter dated 27th August, i998 from the plaintiff-bank on 29/09/1998 calling Upon the applicants to pay the amount under decree.

(3.) Learned counsel for the applicants in support of his submission stated that the applicants should not suffer because of the fault of the lawyer and relied upon the following Judgments :-