JAGSON PHARMA (P) LTD Vs. JAGSONPAL PHARMACEAUTICALS LTD

JUDGEMENT

(1.) This appeal is directed against the judgment of the Additional District Judge Ms. Asha Menon dated March 12, 2008, dismissing its application under Order 9 Rule 13 of the Code of Civil Procedure and also an application under Section 5 of the Limitation Act for condonation of delay in moving the application under Order 9 Rule 13 of the Code of Civil Procedure. The appellant herein was the defendant in the court of the Additional District Judge. A perusal of the impugned order shows that as none appeared for the defendant, it was proceeded against ex-parte on May 5, 2005 and thereafter on July 31, 2006, ex-parte judgment was passed against it. The afore-mentioned applications under Order 9 Rule 13 of the Code of Civil Procedure and under Sections 5 of the Limitation Act were filed before the Additional District Judge on October 20, 2006. The learned Judge had dismissed the applications on the ground that the same were not filed by the defendant but by its counsel and that an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside of an ex-parte judgment and decree must emanate from the aggrieved party and not from the counsel. Therefore, the application was found to be not maintainable. Having so held, the learned Additional District Judge also looked into the grounds raised for setting aside of the ex-parte judgment and decree. It was contended before the learned Additional District Judge that it was not the defendant but its counsel who was negligent in not attending to the case. The learned Judge has held that not only the counsel but the defendant too was negligent inasmuch as even though there was an ex-parte injunction operating against the defendant it did not care to find out the status of the case.

(2.) It is submitted before this Court that the previous counsel who was attending to the case never informed the appellant that an ex-parte order has been passed against him and further more in order to cover up his lapse, he himself moved the application for setting aside of the ex-parte judgment and decree. The appellant on coming to know about the exparte judgment and decree against him engaged another counsel. At the same time, it is not disputed that after the appellant had engaged another counsel, no affidavit was filed before the Additional District Judge stating therein that the previous counsel had not informed the appellant about the ex-parte order passed against him or that he filed the application under Order 9 Rule 13 of the Code of Civil Procedure and under Section 5 of the Limitation Act without his knowledge and instructions. In the absence of these facts, the Additional District Judge has rightly held the applications filed by the previous counsel as not maintainable. I find no infirmity in the order dated March 12, 2008. The appeal is dismissed.