FUJI INTERNATIONAL LIMITED Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) This application is filed by defendant No.3 under Order IX Rule 7, CPC, to set aside the exparte order passed against him on 17.5.1991. The claim of defendant No.3 is resisted by the plaintiff by contending that the application is barred by the law of Limitation and there are latches on the part of the applicant and that there are no grounds for setting aside the ex parte order passed against him.

(2.) In this application an interest question of law is raised and, therefore, it is necessary to give the details which have given rise to this application. The plaintiff Company had filed the present suit by presenting alongwith the plaint an application under Rule 1 Order XXXIII, Civil Procedure Code on 27.9.89. It was the contention of the plaintiff that it was an indigent person and had no sufficient means to pay the Court Fees. On the said application notices were issued to the opponents and the said application was contested. After considering the material before him my learned predecessor was pleased to reject-the claim of the petitioner to allow him to sue as a pauper by passing the order dated 9.1.1991 as under: "It appears that the petitioner at the time of filing of the petition had no funds in its hands but the petitioner could definitely admittedly arrange funds by issuing fresh shares. So it is held that the petition under Order XXXIII is liable to be rejected as the petitioner could have arranged the funds after issuing fresh shares. Hence, this petition (IPA.23/89) is rejected. However, keeping in view the fact that the petitioner had no immediate funds at the time of filing of the petition for payment of court fee and had is sued fresh shares during the pendency of the petition and had received funds, it is a fit case for exercising discretion in favour of the petitioner for grant of time for payment of court fee. While dismissing the petition and the application, I grant time of two weeks for payment of requisite court fee. On payment of court fee, the petition shall he registerd as a suit. The matter be listed for further proceedings before I he court in short maltefs on 31st January, 1991.

(3.) After the above order was passed it seems that before 31.1.1991 the petitioner had paid the necessary court fees and by the order dated 31.1.1991 the suit was registered. The order sheet shows that on that date only counsel for the plaintiff was present and neither the defendants nor any of their cousnel was present. On subsequent hearing's it seems that defendants 1 & 2 appeared through their counsel. Mr. S.D. Sharma but the present applicant/defendant No.3 had not appeared before the Court after 9.1.1991. On 17.5.1991 the exparte order was passed against the defendant No.3, which reads as follows: "Defendant No.3 is absent. I form the record that counsel for defendant No.3 was appearing and dales were being taken for filing the written statement hut no written statement was Filed. Defendant No.3 is proceeded against exparte.