RAJ KUMAR MAHESHWAI Vs. JYOTI GUPTA & ORS.

JUDGEMENT

(1.) I.A. No. 6328/2009 ( u/o 9 Rule 13 CPC for setting aside Ex. Parte decree)

(2.) It is submitted by defendant No.1 that she is being represented by a lawyer appointed by the Delhi High Court Legal Society, who was present at the first call while the counsel for the plaintiff was not present. At the second call, the counsel for defendant No.1 is not present. Counsel for the plaintiff has submitted that the application is being adjourned from time to time as the counsel for defendant no.1 has been seeking adjournments to delay the matter. Defendant No.1 is present in person. The defendant No.1 submits that she was prevented by sufficient cause for not appearing in this Court and for not filing the written statement, as she was in judicial custody. She has drawn the attention of the Court to the order dated 20th December, 2007 passed on an application filed by the plaintiff seeking to serve summons on her through Superintendent, Tihar Jail No.6. In the said application filed by the plaintiff it was stated that the defendant No.1 is lodged in the Jail pursuant to FIR No. 755 dated 30th December, 2004 under Ss. 406/409/420 and 422 IPC PS Model Town. The aforesaid application was allowed. On 11th January, 2008, the defendant No. 1 was present in court in custody and was granted time to file written statement within four weeks. As no written statement was filed and on account of non -appearance, the defendant no.1 was proceeded ex parte. No written statement was filed by defendant Nos. 2 and 3 and they were also proceeded ex parte and subsequently on 25th July, 2008, an ex parte decree was passed.

(3.) Defendant No.1 submits that she is a widow and she lost her husband very early in life when her only son was studying in 5th Class. It is submitted by her that she was made to sign a cheque to guarantee a transaction which was entered into between plaintiff and defendant Nos. 2 and 3, against whom no action has been initiated, but taking into consideration that she is a soft target, defenceless and a widow looking after her old aged and infirm mother -in -law along with her minor son, she was arrested and sent to imprisonment. It is submitted that during the relevant period, she remained in judicial custody which prevented her from engaging a counsel and filing written statement. It is further submitted that even delay in filing the present application is on account of the fact that she was unable to engage services of any counsel and even otherwise, she was extremely pre -occupied, mentally disturbed and harassed and was taking all steps to obtain bail, to enable her to look after her family. She does not dispute the fact that she has been making number of applications for bail during this period. It is submitted by her that on account of lack of legal facilities and proper legal advice, she should not be made to suffer twice for an offence which she never committed and to make payment of an amount of which she was never received. She submits that no prejudice will be caused to the plaintiff if the matter is disposed of on merits and on the contrary she will suffer irreparable loss and injury in case the ex parte decree is not set aside. She further submits that the grounds raises in the present application under order 9 Rule 13 may also be read for condonation of delay under Sec. 5 of the Limitation Act as the ground of delay are identical for non -appearing in the Court and not filing the written statement.