ORIENTAL BANK OF COMMERCE Vs. AJIT SINGH

JUDGEMENT

(1.) Application under Order IX Rule 13 read with Section 151 C.P.C. was dismissed by learned Additional District Judge vide his order dated 04.06.2005. Aggrieved by this order, the present first appeal has been preferred. The genesis and sequence of this case is as follows. The plaintiff-respondent had filed a suit for ejectment of the appellants from the ground floor of premises No. IX/6094, Main Road, Gandhi Nagar, Delhi measuring about 1450 square feet and for recovery of damages for use and occupation of the suit property in the sum of Rs. 5,33,800/- for the period w.e.f. 17.01.2001 till filing of the said suit on 07.08.2002. The plaintiff/respondent had moved an application under Order 12 Rule 6 read with Section 151 C.P.C. The appellants had contested that application. The Trial Court vide its order dated 29.01.2003 passed decree for ejectment of the defendants/appellants from the suit premises and also held that a separate enquiry under Order XX Rule 12 C.P.C. was to be initiated to know the quantum of damages/mesne profits. Aggrieved by that order, the appellants had filed an appeal before this Court. The Division Bench of this Court vide its order dated 16.02.2003 gave time to appellants to hand over the vacant and peaceful possession of the disputed property on or before 30.09.2005 on the undertaking given by the appellants.

(2.) The learned Trial Court vide its judgment dated 07.01.2004 decreed the suit with interest @ 12% per annum pendente lite and future interest. The Court of learned Additional District Judge also directed that the respondent was entitled to future damages @ Rs. 20/- per square feet i.e., @ Rs. 28,600/- from the date of filing of the suit till the handing over of the peaceful possession of the suit premises. Judgment dated 17.01.2004 further goes to show that the appellants did not appear before the Court on 17.01.2004. The appellants were proceeded against ex parte and the above mentioned judgment was announced on the same day.

(3.) The appellants moved an application for setting aside the ex parte decree dated 17.01.2004 vide application dated 19.03.2004. It is averred that on 02.01.2004, the learned Additional District Judge was pleased to adjourn the matter firstly for 17.01.2004, however, the matter was finally adjourned for 12.02.2004. The learned counsel for the appellants got the impression that the case was fixed for final hearing for 12.02.2004. He noted the date on the file as 12.02.2004. Learned counsel for the appellants appeared in the Court on 12.02.2004 but it transpired that the Hon'ble Court was on leave. The cause list also did not mention the name of the case. On enquiry, it came to light that the case was taken up on 17.01.2004, the defendant was proceeded against ex parte and the matter was decreed by the Hon'ble Court on the same very day. Learned counsel for the appellants inspected the file on 13.02.2004. Consequently, the above mentioned application was filed The appellants pleaded that they have got a good prima facie case, the opposite party did not place the true facts before the Court, the respondent-plaintiff failed to prove that he is entitled to claim the above said rate of rent because the prevailing rate of rent is much lower, and the absence of the appellants was neither intentional nor willful nor to delay the ends of justice but it was an inadvertent mistake. Application under Section 5 of Limitation Act seeking condonation of delay was also filed. The respondent has contested the application. The following two issues were framed: (1) Whether the decree is liable to be set aside as alleged in the application under Order IX Rule 13 C.P.C. (2) Relief.