NARENDRA DUBEY Vs. BHUNESHWAR CHAITANYAKUMAR TRIVEDI

JUDGEMENT

(1.) THE present application has been filed by the applicant (original defendant) against the judgment and order dated 17.04.2013, passed by the learned Judge, Court No.6, City Civil and Sessions Court, Ahmedabad, in Civil Misc. Application No.177 of 2013, whereby the said application for condonation of delay in filing an application for restoration of the Suit, being Summary Suit No.2588 of 2010,has been rejected.

(2.) THE applicant is the Proprietor of A.P. Enterprises. The respondent herein is the original plaintiff of Summary Suit No.2588 of 2010. The City Civil Court, during the pendency of the Suit, passed an order to serve the applicant through Registered Post A.D. Summons were served at the address of the applicant as also the place of business of the applicant, on 25.11.2010. The notice was received by an office bearer of the applicant. According to the applicant, at the time of receiving the summons, he was not present in Mumbai. On receiving a message regarding the summons, the applicant approached his advocate Mr. Bhupendra Mishra at Mumbai, who advised him to appear before the City Civil Court, Ahmedabad. The applicant, along with advocate Mr. Bhupendra Mishra, went to Ahmedabad and engaged a local advocate at Ahmedabad to appear before the City Civil Court. According to the applicant, the advocate at Ahmedabad informed him that he would file his appearance and a Leave -to -Defend application. However, the local advocate at Ahmedabad did not file his appearance or proceed any further with the matter.

(3.) THE respondent/plaintiff preferred an application for proceeding ex -parte under Order 37 Rule 3 of the Code of Civil Procedure, 1908. The applicant states that on 17.12.2010, he was out of the country on a business tour for a fortnight. On his return, he occasionally inquired about the proceedings of the Suit and every time received a positive reply from the local advocate at Ahmedabad. In the month of January, the local advocate at Ahmedabad approached advocate Mr.Bhupendra Mishra at Mumbai, through a letter declaring that he had retired from the matter. According to the applicant, the advocate at Ahmedabad never informed the applicant about the decree passed by the City Civil Court against the applicant. The Suit was decreed ex -parte against the applicant and a decree for Rs.10,00,000/ - with costs of the Suit and interest, was passed against the applicant. The applicant and advocate Mr. Bhupendra Mishra came from Mumbai on 02.02.2011 and it was only then that they were informed that the Summary Suit had been proceeded ex -parte against the applicant on 7 -1 -2011. A certified copy of the order was applied for on the same day and was delivered on 03.03.2011. The applicant filed an application for restoration of the Suit on 21.02.2013. As there was a delay of 721 days in filing the said application, therefore, an application for condonation of delay also came to be filed. The application for condonation of delay has been rejected by the impugned order dated 17.04.2013. Aggrieved thereby, the petitioner has filed the present Revision Application.