BHIKHUSHA AHSHA Vs. NAROTTAM PARSOTTAM JETHVA

JUDGEMENT

(1.) to 4. xxx xxx xxx

(2.) It is not much in dispute that the petitioner had obtained an award of compensation on 30 -6 -1988 in MACP No. 157/83. The first respondent did not appear before the Tribunal and, therefore, the matter had proceeded ex parte against him. It is also not much in dispute that the first respondent preferred Claim Misc. Application No. 13/93 under Order 9 Rule 13 of the Code for setting aside the ex parte award. The Tribunal allowed the application and passed the aforesaid order which is impugned in this revision application. It is not much in dispute that the first respondent had made an application for setting aside the ex parte order passed, under Order 9 Rule 13 of the Code. Order 9 Rule 13 of the CPC clearly provides that in any case in which a decree is passed ex parte against a defendant, he may apply to a Court by which the decree was passed for an order for setting it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. and shall appoint a day for proceeding with the suit.

(3.) This means that even when the court is satisfied that the defendant was prevented from appearing in the court, then in exercise of the powers under Order 9 Rule 13 of the Code the Court would set aside the decree and then would appoint a day for proceeding with the suit. In the present case. we find that the learned Tribunal while exercising the said power set aside an ex parte award in favour of the petitioner and against the first respondent.