AGRBANDHU FOOTWEARS P LTD Vs. DAYANAND JAIN

JUDGEMENT

(1.) THE impugned judgment is dated 26.03.2008 vide which the application filed by the defendant under Order XXXVII Rule 4 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'Code') seeking a setting aside of the judgment and decree dated 05.12.005 had been dismissed.

(2.) RECORD shows that the present suit has been filed by the plaintiff under Order XXXVII of the Code. The defendant had appeared and was represented through his counsel; power of attorney was filed; contention of the defendant was that he misunderstood the provisions of Order XXXVII of the Code and was not aware of the fact that the memo of appearance is required to be filed within the stipulated period of 10 days; after his appearance on 30.08.2005, matter was adjourned for 27.09.2005. The contention of the defendant was that the date was wrongly noted in his diary as 28.09.2005.

(3.) IT is not the case of the defendant that he was not aware of the procedure; he had appeared through his counsel and signed the power of attorney for his counsel; however thereafter he chose not to appear; he did not file his memo of appearance within the period prescribed. This period of 10 days had expired on 10.09.2005; appearance of the defendant through his counsel Mr. Sandeep Singh had been noted in the order of the Court dated 30.08.2005. On 27.09.2005, again none had appeared for the defendant and so also the subsequent date i.e. on 20.10.2005.