INDU PRASAD Vs. KUMUD LATA

JUDGEMENT

(1.) This order will dispose of two applications filed by the defendant under order 9 Rule 13 read with Section 151 Civil Procedure Code (IA No.8627/95) and Section 5 of the Limitation Act, 1963 (IA No.8628/95) for setting aside the ex-parte decree passed against her on 6 April 1995 and for condonation of delay in filing the first application.

(2.) The plaintiff filed a suit for possession of flat No.RU-196, Visakha Enclave ,Pitampura, Delhi and for mesne profits against the defendant, her daughter in -law, with a further prayer for mandatory injunction directing the defendant to handover the documents of title relating to the property. The defendant resisted the suit, claiming that the said flat was acquired by her out of her Stri-Dhan and other savings. Pleadings in the suit were completed on 10th February 1992: the issues were framed on 20 December 1992 and the dates of trial were fixed on 12 April 1993 for plaintiff's evidence on 18 and 19 January 1995 and for defendant's evidence from 20 to 23 January 1995. The case was thereafter adjourned from time to time for filing list of witnesses and scrutiny before the Deputy Registrar and ultimately came up for trial on 18 January 1995 but was adjourned to 20 January 1995. As no one appeared for the defendant on all these dates, plaintiff's ex-parte evidence was recorded and on 6 April 1995 an ex-parte decree was passed against the defendant. Hence the present applications.

(3.) The applications were filed on 7 September 1995, alleging that: (1) the ex-parte decree has been deceptively obtained by the plaintiff in connivance with her son, the defendant's husband, with whom divorce proceedings were pending, and he had assured her that the plaintiff would withdraw the present suit on her agreeing to divorce him, and (2) counsel had wrongly noted the dates of trial as being 18-19 January 1996 instead of actual dates of trial fixed as from 18 to 23 January 1995; it was an inadvertent error on the part of her counsel on account of which she could not appear in court and should not be made to suffer. It is stated that the defendant learnt about the ex-parte decree only on 22 August 1995, when the records were inspected in order to make a fresh application for the impleadment of DDA, who were pressing her for payment of remaining instalments, and the application has been filed bonafide, within 30 days from the date of knowledge of the decree dated 6 April 1995.