AKLESH CHANDRA MATHUR Vs. CANARA BANK

JUDGEMENT

(1.) Shri Akiesh Chandra Mathur, Appellant, has filed this appeal against the order dated 12.2.1992 of Shri Ravi Kumar, Additional District Judge, Delhi, thereby dismissing the application under Order 9 Rule 13 read with Section 151 C.P.C., moved by him for setting aside the ex-parte decree dated 22.7.1988.

(2.) Brief facts, leading to the filing of this appeal are that Canara Bank, respondent/ plaintiff (hereinafter referred to as "plaintiff) filed a suit for recovery of Rs.44,006.80 paise against the appellant/defendant (hereinafter referred to as "defendant"). The case came up for hearing on 7.4.1988, on which date, the defendant appeared, on whose prayer, the case was adjourned to 5.5.1988 for filing of the written statement. On this date, again, a request was made for further time by the defendant for filing the written statement and so the case was adjourned to 1.6.1988. There was no appearance on behalf of the defendant on that date and so ex-parte proceedings were ordered against him and the case was adjourned to 22.7.1988 for ex-parte evidence. No one appeared for the defendant on that date and so after recording the exparte evidence, the suit was decreed.

(3.) An application dated 16.8.1988 was moved by the defendant, under Order 9 Rule 13 read with Sec. 151 C.P.C. for setting aside the exparte judgment and decree dated 22.7.1988. It was, inter-alia, pleaded by the defendant that on account of the strike by the advocates, no advocate could be engaged by him and so, on his request, made on 7.4.1988 the case was adjourned to 5.5.1988 and that on that date, his counsel Shri R.B.L. Srivastava could not be present on account the trouble in his eyes and so, the case was adjourned to 1.6.1988. Further averment made in the application has been that his brother Avinash Chandra Mathur was seriously ill during the last week of May, 1988 and who was got admitted in the hospital and the entire family was looking after him, on account of which, there was no appearance on 1.6.1988. It was also claimed that on 20.6.1988, his brother was operated upon for cancer. It was also claimed that on 18.7.1988, he came to know that the case was fixed for exparte evidence and on 22.7.1988, he had even gone to the court and came to know that exparte evidence was being recorded, but in spite of it, it was only on 10.8.1988 that his counsel inspected the file and came to know that exparte decree has been passed on 22.7.1988. It is, in these circumstances, that a prayer was made that the exparte judgment and decree be set aside.