TEXMODE Vs. SANA OVERSEAS

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 8. 5. 2007 whereby the application under Order 9 Rule 7 CPC and another application under Order 9 Rule 9 filed by the petitioner were dismissed.

(2.) THE relevant facts necessary for disposal of this petition are that respondent/plaintiff had filed a suit for recovery of Rs. 2,51,000/- against the defendant/petitioner, in that suit the present petitioner had also filed a counter claim. The suit of the respondent and counter claim of the petitioner was fixed before the Trial Court on 21. 3. 2005 for admission/denial of the documents. On that day after admission/denial, the matter was adjourned to 25. 4. 2005 for framing of issues. On 25. 4. 2005 none appeared for the defendant despite the Court waiting for the defendant after passing over of the matter and the defendant was proceeded ex-parte in the suit and the counter claim of the defendant was dismissed. Defendant filed two applications, one under Order 9 rule 7 CPC for setting aside ex parte order and another under Order 9 Rule 9 CPC for restoration of the counter claim. In both the applications, the petitioner/defendant took the stand that on 25. 4. 2005 counsel for the petitioner could not appear and manager of the defendant Mr. Rajesh came to the Court and appeared when the case was called. However, the plaintiff was not present in the morning therefore, the case was kept pending but inadvertently the Court did not mark the attendance of the representative of the defendant. Thereafter at 12. 40 pm, when the representative of the defendant came to the Court and enquired about the matter, it was found that the case was still pending. The representative of the defendant then came after lunch to make enquiry from the reader but the reader was busy with other litigants and the representative was informed by the reader the next date of hearing. There was crowd in the Court, so the representative of the defendant noted down the next date as 3. 8. 2005 and accordingly informed his Counsel this next date. On 3. 8. 2005, when the representative of the defendant came to the Court, the case was not found in the cause list and on enquiry, he learnt that he had already been proceeded ex parte on 25. 4. 2005. On inspection, it was revealed that none appeared for the defendant before the Court on 25. 4. 2005 and the defendant was proceeded ex parte and counter claim of the defendant was dismissed in default hence the application.

(3.) THE Trial Court disbelieved the stand taken by the defendant/petitioner and also found that even earlier a similar stand was taken by the defendant/petitioner when earlier also none had appeared for the defendant and the case was proceeded ex parte against the defendant/petitioner and counter claim was dismissed. The Trial Court observed that the application has been filed with a false story and defendant was in the habit of absenting himself and getting proceeded ex parte and then getting the same order set aside so as to delay the proceedings. The Trial Court found that it was highly improbable that similar circumstances would arise twice with the same party and the excuse given by the defendant was a ploy, to have the application allowed.