INDER INDUSTRIES Vs. GEMCO ELECTRICAL INDUSTRIES

JUDGEMENT

(1.) THE trial court vide its order dated 24th March, 2007, dismissed the applications under Order 9 Rule 13 read with Section 151 CPC and Section 5 of the Limitation Act. Aggrieved by that order, the, instant appeal has been preferred. The facts of the present case are these. On 12th January, 2006, none appeared on behalf of the appellant/defendant. On the request of the respondent/plaintiff, the case was adjourned to 7th February, 2006. On 7th February, 2006, again, nobody appeared for the appellant but on that day the respondent filed his affidavit along with the documents. The appellant was proceeded against ex parte on the same day and the case was adjourned to 15th February, 2006, for ex parte evidence. On 15th February 2006, the statement of PW -1 was partly recorded and the case was adjourned to 27th March, 2006. On 27th March, 2006, again the appellant did not appear and the case was adjourned to 5th April, 2006. On 5th April, 2006, also the appellant did not appear. The statement of PW -1 was recorded and the plaintiff/respondent closed its evidence. The arguments were heard and the case was adjourned to 10th April, 2006 for pronouncement of judgment. On 10th April, 2006, the respondent filed the written arguments and the judgment was pronounced at 4 p.m. on the same day.

(2.) THEREAFTER , an application under Order 9 Rule 13 read with Section 151 CPC was filed for setting aside the ex parte order dated 7th February, 2006 and subsequent judgment and decree dated 10th April, 2006. The said application Ms accompanied by another application under Section 5 of the Limitation Act. It is averred that the appellant came to know about the ex parte order only on 26th October, 2006. The appellant set up three grounds in the said application. Firstly, the lawyers were abstaining from appearing in Court due to ongoing strike regarding the bifurcation of courts. The appellant contacted his advocate Mr. Bhalerao in the month of January, 2006, who then informed him that ,due to lawyers' strike nothing was happening in his case and it was simply being adjourned further. He further informed him that there was no change in circumstances and if and when the strike was over and work would commence, he would himself apprise him of the same. Secondly, Mr. Devender Jain, appellant's partner, contacted the advocate in the month of June 2006, who informed him that the courts are closed and he would find out about the status of the case once the courts, would reopen on 6th July, 2006. Last but not the least much emphasis was laid on para 6 of application under Order 9 Rule 7 and Order 9 Rule 13 read with Section 151 CPC, which is reproduced as hereunder:

(3.) I have heard the counsel for the parties. Learned counsel for the appellant has laid emphasis on para 6 of the application under Order 9 Rule 7 and Order 9 Rule 13 read with Section 151 CPC, detailed above. He stressed that reasons detailed in the said application speak for themselves and constitute sufficient cause.