ANANT CONSTRUCTION COMPANY Vs. PRAJAPATI JOITARAM CHAGANLAL COMPANY

JUDGEMENT

(1.) Rule. Mr. Gandhi, learned Advocate waives service of Rule on behalf of respondent-original plaintiff. Rule is fixed forthwith. Heard Mr. Joshi, learned Advocate for the petitioner-original defendant and Mr. Gandhi for the respondent- original plaintiff. The challenge in this revision application is in respect of the order passed by the learned Chamber Judge of the City Civil Judge, Ahmedabad Court No. 13 dated 19th October, 2001 below application Exh. 1 in Civil Misc. Application No. 795 of 2000, wherein, the learned Chamber Judge has rejected the application of the petitioner-defendant, wherein, the petitioner has prayed for setting aside the ex parte decree passed in Civil Suit No. 476 of 1999 dated 20th October, 2000 and prayed for restoration of the said suit. As found from the petition, an application under Sec. 37 Rule 4 as well as under Sec. 151 of the CPC supported with an affidavit of Shri Tushar Gajjar dated 20th November, 2000, who is one of the partners was submitted, wherein, it is his case that the decree was passed on 20th October, 2000 and as the said decree was passed ex pane, the petitioner has prayed for relief by highlighting in his affidavit that Shri Tusharbhai Gajjar, who was the partner, was not in a position to attend the Court and as summons for judgment was taken out, it was not possible for the petitioner to attend the Court. It is further found from the affidavit that his daughter has sustained injury, for which, she was under treatment at Harihant Orthopedic Hospital and she was operated on 27th October, 2000 and it was not possible for him to file leave to defend and prayed that decree, which was passed on 20th October, 2000, be set aside and the suit be restored.

(2.) The learned Chamber Judge has while considering the application and the contentions raised before him that the ex parte decree was passed, has not accepted the case of the defendant as according to the Court, sufficient opportunity was given to the defendant and further no evidence is produced regarding ailment of daughter of Tushar Gajjar. Learned Chamber Judge has also held that the decree is not an ex parte decree and further, no error is committed. Mr. Joshi, learned Advocate for the petitioners has submitted that in view of the claim put forward by the plaintiff, there is a triable issues and even considering the claim of the plaintiff, the same is also time barred and accordingly, he submitted that opportunity be given to him to defend the case and accordingly, prayed for setting aside the said order. In support of his submission, he has placed reliance on the decision reported in AIR 1966 AP 136, and AIR 1990 Rajasthan p18.

(3.) Mr. Gandhi, learned Advocate for the respondent-plaintiff has supported the order. According to him that reading the order itself, it clearly transpires that decree, which was passed, cannot be said that the said decree is an ex parte decree. Even as found from the order, opportunity was given to the petitioner-defendant and inspite of that, leave to defend was not submitted and further the stand taken by the petitioner that daughter of Tushar Gajjar was seriously injured but however, as found from the record, it is found that the all the legal proceedings were conducted by Mr. Joshi and it would not be opened to contend that Mr. Gajjar could not attend the matter due to injuries sustained by his daughter and it would not be possible for him to attend the Court. Mr. Joshi was one of the partners and could have taken steps to file leave to defend application. It is the contention of Mr. Gandhi that it is not true that no opportunity was given to the defendant and accordingly, he prayed for dismissal of the revision application.