ASHOK KUMAR DHIMAN Vs. SMT. CHANDRAWATI MEHTA

JUDGEMENT

(1.) THIS revision by the Defendant -applicant is directed against the order dated 20.1.1994, passed by the Additional District Judge, Hardwar, dismissing the application (3 -Ga) of the Defendant -applicant for recalling the ex parte decree dated 23.4.1992.

(2.) BRIEF facts of the case are that the Plaintiff -opp. party filed a suit against the Defendant -applicant for ejectment and recovery of arrears of rent from the disputed shop on the ground that the said Defendant -applicant was a defaulter and had not paid the arrears of rent despite the service of the notice under Section 106 of the Transfer of Properties Act on the said Defendant. The suit was contested by the Defendant -applicant, inter alia, on the ground that the said Defendant was not in arrears of rent and had been paying the same to the landlady who had not issued the rent receipts and subsequently the same was being deposited under Section 30(1) of the U.P. Act No. 13 of 1972 in Court. The suit was decreed ex parte on 23.4.1992 by the court below. An application under Order 9, Rule 13 Code of Civil Procedure was filed by the Defendant on 27.4.1992 for recalling the order dated 23.4.1992 and for restoration of the suit. The said application has been dismissed by the impugned order passed by the court below on 20.1.1994 hence the present revision.

(3.) IT was next contended by Sri Tandon that the court below has manifestly erred In holding that the applicant had failed to show sufficient cause for recalling the ex parte decree and the reasons given by the court for rejecting the restoration application cannot be sustained. Elaborating his arguments, the learned Counsel has contended that as the counsel for the Defendant had noted on the order -sheet that he had no instructions, the court below ought to have Issued notice to the Defendant rather than to proceed ex parte and thereafter decreed the suit ex parte. Since the counsel did not inform the Defendant regarding the date fixed In the case, the later had no knowledge about the same. The cause shown by the Defendant therefore, was sufficient for recalling the ex parte decree The learned Counsel in support of his contention has referred to the decision of the Supreme Court In the case of Padam Chand Jain v. XII Addl. District Judge, Agra and Ors. 1993 Supreme Court and Full Bench Rent Cases 419. I have perused the findings given by the court below. It has been held that the Defendant -applicant was present in the court of District Judge on 31.10.1991 and has given no reason why he absented himself and made no effort to find out the progress of the case thereafter. That apart the case was received by the transferee court on 15.11.1991 and notice was given to the, counsel for the Defendant regarding the date 5.2.1992 which was fixed for final hearing On the said date, the counsel for the Defendant noted on the order sheet that he had no instructions. The case was listed on 17.3.1992 on which date the court ordered to proceed ex parte against the Defendant. The case was listed thereafter, on 6.4.1992 and 18.4.1992 before the said court and ultimately the ex parte decree was passed on 23.4.1992. The court below was therefore, of the view that the counsel for the Defendant was aware of the transfer of the case and the date fixed by the court and as the counsel has not sought the permission of the court by filing any application for withdrawing from the case as required under Order 3, Rule 4(2) Code of Civil Procedure The said counsel continued to represent the Defendant and It could not be said that the Defendant had no knowledge about the transfer or about the date fixed in the case, therefore, the Defendant has failed to make out sufficient cause for recalling the ex parte decree.