HINDUSTAN TIMES LIMITED Vs. EMESS ADVERTISING SERVICE

JUDGEMENT

(1.) The defendant by this application filed underorder IX Rule 13 CPC, seeks the setting aside of an exparte decree doted 5.2.1991, by which the suit filed by the plaintiff was decreed for R.-,. 7,09,491.62 paise with pendente lite interest @ 12% p.a.

(2.) The defendant in this application dated 25.2.1991 tiled on 4.3.1991, contends that she was not aware of the pendency of the suit before the evening of 5.2.1991. The defendant's contention is that one Sh. Yog Raj Sharma, Advocate had telephoned in the morning of 5.2.1991, and it was only when her husband in the evening enquired as to in what connection Sh. Yog Raj Sharma, Advocate had called that they learnt about the pendency of the suit. In the event they engaged Mr. J.P. Gupta, Advocate, since the said Sh. Yog Raj Sharma wah not in a position to handle the case and Sh. J.P. Gupta moved an application for inspection of file on 7.2.1991 and inspected the file on 12.2.1991. The application is supported with the affidavit of the sole proprietor of the defendant. Smt. Vimla Sharma, affidavit of Sh. Yog Raj Sharma, Advocate to the effect that the husband of the dendant had contacted Sh. S.K. Tewari, Advocate to conduct another case which they were not able to take up on account of personal reasons. It is further stated by him that the defendant's husband had come to the office in this connection few time and hence he had noted his telephone number in the diary. Further while going through the cause list of 4.2.1991, he had found that the present case is listed in the category of short causes and had therefore, informed the defendant and her husband about the case. The application is also supported by the affidavit of the ..detendant's husband. It is contended that the defendant was not aware of the suit and hernon-appearance was unintentional. Further that no prejudice would be caused to the plaintiff if the ex parte decree was set aside and the defendant was granted time to file written statement. Reply to the application has been filed by the plaintiff. It is contended in the reply that the defendant was aware of the pendency of the suit. It is claimed by the plaintiff that non appearance by the defendant was intentional. It is stated th during the pendency of the suit, certian meagre amounts were even deposited u; die defendant to liquidate the liablity.

(3.) Let me notice some of the facts as revealed from the record :__