STATE OF HARYANA Vs. K LSHROFF

JUDGEMENT

(1.) THIS appeal is preferred against the order dated 31st July, 2007 passed by the learned Single Judge whereby IA No. 7974/2004 in CS (OS) 3186/1988 filed by the appellant/defendant under order IX Rule 13 CPC seeking to set aside the ex parte judgment and decree dated 2nd September, 2003 was dismissed. The learned single Judge inter alia held that the application under Order IX Rule 13 CPC is not maintainable as the impugned judgment and decree dated 2nd September, 2003 was not an ex parte decision as the case has been decided on merits. Relying upon the decision of a Division Bench decision of this Court in the case of delhi Development Authority v. Anant Raj Agencies [2001 (57) DRJ 688], it was further held that the only appropriate remedy available against the impugned judgment and decree is by way of appeal.

(2.) EXPLANATION appended to Rule 2 of Order XVII CPC, which is material for the present case, reads as follows:

(3.) THE aforesaid provision makes it clear that if a substantial portion of the evidence of a party has already been recorded, and if the said party fails to appear on the next date, the Court can proceed as if the said party is present. In the instant case, the evidence of both the parties was complete and thereafter the appellant-defendant failed to appear before the Court and the decree came to be passed on the merits of the case. Such a decision would not be an ex parte decision in view of the legal fiction introduced by the explanation to Rule 2 of Order XVII that such a party though actually and physically was not present should be deemed to be present. Thus the judgment and decree dated 2nd September, 2003 which was passed on merits after consideration of the evidence adduced by the parties cannot be said to be ex parte in view of the explanation to Rule 2 of Order XVII CPC. That being so, the provisions of Order IX Rule 13 CPC could not be invoked to assail the said decree.