AJAY AGARWAL Vs. VINOD MEHTA

JUDGEMENT

(1.) By this order I propose to dispose of the aforesaid two applications. First is filed by defendant No. 3 under Order 9 Rule 7 CPC for setting aside the ex-parte decree/judgment dated 11.11.2002 whereas I.A. No. 3811/2003, has been filed seeking condonation of delay in moving the first application.

(2.) After being served with the summons in the suit, the defendants entered appearance on 5.11.1993 and filed written statement on 24.5.1994. Issues in the suit were framed on 14.10.1996. On the same day, the court fixed dates for trial as 29th, 30th, 31st August and 1st September 1999. The matter was directed to be listed before the Joint Registrar on 14th February 1997 for scrutiny. Parties were given time to file additional documents, if any, within six weeks. Thereafter, proceedings were taken before Joint Registrar on 14th February 1997, 6.1.1998, 3.11.1998, 29.4.1999 and 2.7.1999. On none of these dates, defendants were present. Matter was listed before court on 30th August 1999, which was the second date fixed for the holding of the trial in the suit. On this date as well, there was no appearance on behalf of the defendant. Matter was again called out on 31st August 1999. None appeared for the defendants. The court then proceeded ex-parte against defendants and the plaintiff was granted time to lead its ex-parte evidence by way of affidavit of evidence within four weeks. It appears that the plaintiff also repeatedly took time to file his ex-parte evidence on affidavits. On 5th April 2000, the suit of the plaintiff was dismissed in default by observing that the plaintiff had been granted repeated opportunities for filing ex-parte affidavit by way of evidence and the lawyers were abstaining from work. The plaintiff then filed LA. No. 4014/2000 for restoration of the suit under Order 9 Rule 4 CPC. This application was allowed on 9th May 2000. However, no notice of the fact of restoration of the suit was issued to the defendants. The court granted further time to plaintiff to lead ex-parte evidence by way of affidavit subject to payment of costs in the Prime Minister's Relief Fund. Eventually, ex-parte evidence by way of affidavit was filed by the plaintiff and the suit was heard and judgment reserved on 16th August 2002, which came to be pronounced on 11th November 2002 decreeing the suit of the plaintiff for a sum of Rs. 10,05,500/- with costs and interest @ 12% per annum from the date of the judgment and realization. No decree was passed against defendant No. 4.

(3.) Defendant No. 3 thereafter filed the aforesaid two applications apart from I.A. No. 3814/2003 seeking stay of the execution. On 1st April 2003, notice was issued on the applications and accepted by counsel for the plaintiff. A conditional stay was granted in respect of the judgment dated 11th November 2002.