EMESS ADVERTISING SERVICE Vs. HINDUSTAN TIMES LIMITED

JUDGEMENT

(1.) This appeal by M/s. EMESS Advertising Service, appellant-defendant, is against the \ order dated January 31, 1996 passed by learned Single Judge dismissing application (I.A. 2026/91) under Order IX Rule 13 read with Section 151 CPC filed in Suit No. 227/88 read with Section 151 CPC filed in Suit No. 227/88 seeking to set aside ex-parte decree dated Februarys, 1991.

(2.) The application was filed on March 5, 1991 by Smt. Vimla Sharma, claiming herself to be the proprietor of the appellant, on the allegations that The Hindustan Times Limited respondent filed a suit for recovery ofRs.7,55,648.005P against the appellant After the appellant was served with the summons by publication, an ex-parte decree was passed against it on February 5, 1991. She was not aware of the pendency of the suit before the evening of February 5, 1991 when her husband got in touch with Shri Yograj Sharma, Advocate, on telephone to find out as to in what connection he had telephoned him in the morning. IT was revealed by Shri Yograj Sharma, Advocate, that a case was pending against the appellant and listed in the High Court. On February 6, 1991, her husband instructed Shri Yograj Sharma to engage Shri J.P. Gupta, Advocate to conduct the case. An application for inspection was filed on February 7, 1991. Inspection of the file was carried out on February 12, 1991, Application for setting aside the decree was thus filed on February 25, 1991. It is alleged that non appearance of the appellant in the suit was not intentional. Consequently, it was prayed that the ex-perte decree dated February 5, 1991 may be set aside and the appellant may be granted time to file the written statement.

(3.) Respondent contested the application alleging that the appellant was keeping a vigil on the court proceedings in this suit without causing appearance and was aware about the pendency of the suit. It is denied that the appellant was informed only on February 5, 1991 about the listing of the case as alleged. It is asserted that the non-appearance of the appellant in the suit was intentional and deliberate and the application is liable to be dismissed with costs.