VIPIN AGGARWAL Vs. MOHINDER SINGH

JUDGEMENT

(1.) C.M. No. 6775/2013 (for exemption)

(2.) THIS is an appeal filed by the appellant under Order XLIII Rule 1(d) read with Sections 104 and 151 CPC against the order dated 26.5.2012 passed in M. No. 62/2011 by virtue of which the learned Additional District Judge had dismissed the application of the appellant under Order IX Rule 13 read with Section 151 CPC for setting aside the ex parte decree dated 21.5.2011. Briefly stated the facts of the case are that the respondent/plaintiff filed a suit for specific performance, possession and permanent injunction against the defendant/appellant in respect of property No. 907, Second Floor, Gali Inderwali, Kucha Pati Ram, Bazar Sita Ram, Delhi. The plaintiff/respondent had setup the case that the defendant/appellant had agreed to sell the said property and for that purpose, they entered into an Agreement -cum -Bayana receipt dated 10.8.2008 and plaintiff/respondent also paid a sum of Rs. 2 lacs as earnest money and Rs. 5 lacs as part payment to the appellant. But the defendant/appellant with an ulterior motive, did not abide by the agreement. The defendant/appellant was served and he filed his written statement. However, thereafter, the defendant/appellant absented himself as a consequence of which he was proceeded ex parte on 20.9.2010. After recording of the ex parte evidence of the plaintiff/respondent, the suit was decreed vide judgment dated 21.5.2011. The defendant/appellant filed an application for setting aside the ex parte decree and took a plea that the absence of the appellant was on account of the reason that the counsel had asked the appellant not to appear in the court on account of the case being of a civil nature and he had assured that the matter would be attended to. So far as the counsel is concerned, it was stated that he had kept the case file on a wooden rack and one day all of a sudden, the wooden rack fell down and the files kept over it scattered which resulted in misplacement of the file in question. This is on account of the fact that after picking up the files which had fallen from the wooden rack; the same were placed in the chamber of one Mr. A.C. Tiwari, Advocate, Chamber No. B -107, Tis Hazari Courts, Delhi. Because of this incident, the file got mixed up and as the date of the case was not entered into the diary, therefore, the matter could not be attended by the counsel. It is further stated by the appellant that personally also he was not keeping good health and was suffering from various ailments due to tension and stressful life since February, 2011. He had also filed some documents pertaining to his treatment in Lok Nayak Hospital. On the basis of these facts, it was alleged that it was only on 1.9.2011 when the appellant visited the office of his counsel and enquired about the outcome of his case which led to the discovery of the fact that the file had been misplaced. Thereafter, the counsel searched the files kept in the chamber of Mr. A.C. Tiwari, Advocate from where, the same was located. Accordingly, an application under Order IX Rule 13 CPC for setting aside the ex parte decree along with an application seeking condonation of delay was filed.

(3.) THE learned trial court, after hearing the arguments, dismissed the application by observing that even if the plea of the file having been mixed up with other files of the counsel is accepted to be correct, even then the case should not have been dismissed for default for the reason that the case ought to have been entered into the diary of the counsel.