SUNIL JHAKAR Vs. STATE BANK OF BIKANER

JUDGEMENT

(1.) This appeal is filed against the order of the DRAT dated 11th August, 2003. It has been contended by learned counsel for the petitioner that the petitioner was not served and an ex-party decree was passed against the petitioner on 24th February, 1997 on the basis of substituted service. The petitioner filed an application for setting aside the said ex-party decree on 28th June, 1999. On 17th May, 2001 that application for setting aside the ex-party decree under Order 9 Rule 13 of Code of Civil Procedure was dismissed in default. Therefore on 28th May, 2001 the petitioner filed an application for restoration of the application under Order 9 Rule 13 for setting aside the ex-party decree. However, the application for restoration filed on 28th May,2001 was also dismissed by the DRT on 19th November, 2001. Aggrieved by the dismissal of the restoration application, the petitioner preferred an appeal before the DRAT. DRAT passed the impugned order dated 11th August, 2003 holding that there was sufficient cause for non appearance of petitioner, however, imposed a condition to deposit Rs.25 lacs for restoration.

(2.) We are surprised as to how the DRAT has passed the order imposing a condition to deposit Rs.25 lacs for restoration of application. At page 100 of the paper book the DRAT has observed as under:-

(3.) Thereafter it seems that in view of the arguments of the respondent-bank, the restoration of the application was made conditional that the petitioner should deposit a sum of Rs.25 lacs with the respondent. For the reasons as stated in the order passed by the DRAT, the direction to deposit Rs.25 lacs for the purpose of restoration of the application, it is apparent that the same is without any legal and factual basis and based more on the whims of DRAT. Either application for restoration ought to have been dismissed if there was no sufficient reason for the absence of petitioner and his counsel. But after inferring that there was sufficient reason for absence of petitioner and his counsel, imposing condition of pre-deposit of Rs.25 lacs is totally unwarranted and without any basis.