MAS AVIATION PVT LTD Vs. SARLA TULSHAN

JUDGEMENT

(1.) The petitioners are aggrieved by an order which has declined delay to be condoned in preferring an application under Order 9 Rule 13, alternatively to be read as an application under Order 47 of the Code of Civil Procedure.

(2.) Relevant facts are that the respondent has filed a suit for ejectment and mesne profits against the petitioners. Summons in the suit were duly served upon the petitioners and second petitioner who is the Director of the first petitioner personally appeared before the learned Trial Judge on 5.10.2005 and sought time for filing a written statement. Time as prayed was granted and matter was listed for 10.11.2005. On said date a counsel appeared for the petitioners. He filed a Vakalatnama. He prayed for further time to file a written statement.

(3.) A composite application under Order 9 Rule 13, Order 47 of the Code of Civil Procedure cum Section 5 of the Limitation Act was filed by the petitioners. It was prayed that delay in preferring the application be condoned. On merits it was pointed out that reason, being the sufficient cause, for non-appearance on 12.1.2006 and on subsequent dates was that petitioner No.2 who attended the hearing on 10.11.2005 casually met one Amit Kukshel, Advocate in Tis Hazari Courts. The lawyer gave him his visiting card. Fee was not paid to the lawyer. The lawyer was requested to take an adjournment for filing the written statement. That unfortunately, petitioner No.2 lost the visiting card of the lawyer and since the lawyer had a sitting place some where within the precincts of Tis Hazari Courts Complex second petitioner had no means to locate the lawyer. As regards the lawyer concerned it was stated that since no fee was paid to him, probably for said reason, the lawyer did not appear in court after obtaining time to file the written statement on 10.11.2005. It was further stated that on 29.11.2006 petitioner No.2 came into contact with one Ramesh Kumar an Advocate in Tis Hazari. He appraised the lawyer of an institution of a suit against the petitioners. With great difficulty the lawyer concerned, after making personal efforts, learnt about the ex-parte judgment and decree dated 20.9.2006. It is stated that thereafter the application in question was drafted and filed.