REGAL TALKIES Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This appeal From Order is filed being aggrieved by the judgment and order dated 30.9.1996 passed by the learned IInd Jt. C.J.S.D. Aurangabad in MARJI No. 21 of 1995 in Special Civil Suit No. 181 of 1992, thereby rejecting the application of the appellant for cancellation of exparte decree passed in the said suit.

(2.) The respondent herein filed Special Civil suit No. 181 of 1992 in the Court of learned C.J.S.D. Aurangabad, against the appellants herein. The appellants did not file written statement in the said suit. The suit was posted for hearing on 13.12.1994. Shaikh Omarbi w/o Sk. Rahim, grand-mother of the appellant No. 2 herein Shaikh Salim was ill and the appellant No. 2 and other members had to look after her health. The advocate for the appellants, who are original defendants moved an application before the Court contending his inability to conduct the case on 13.12.1994 because has was to go out of station on personal ground. After filing application for adjournment, the suit was taken up for hearing and was decreed on the same day. Adjournment application was rejected and without passing exparte order, the judgment and decree came to be passed in the said suit. On the adjournment application, the Court observed that the defendants have not put their written statement and they were absent when called. According to the appellants, the decree passed by the court below is exparte decree. The said decree came to be passed on 13.12.1994.

(3.) The appellants herein filed MARJI No. 21 of 1995 under Order IX Rule 13 of C.P.C. for cancellation of exparte decree. It is stated in the said application in para 2 that written statement was not filed on behalf of the original defendants since there was talk of compromise in order to finalize the same, the negotiations were going on between the parties but those negotiations could not be materialized. It is further stated in the application that on the date of hearing i.e. on 13.12.1994, case was posted for hearing. Apart from the fact that grand mother of the appellant No. 2 was ill and the appellant No. 2 and other members had to look after her health as she was a quite old lady. It was mentioned in the application that medical certificate in support thereof would be filed afterwards. In para 4, it is further stated that there was urgent message from native place of the advocate for the appellant, therefore, it was not feasible for him to conduct the case on 13.12.1994, and an application was filed by him before IInd Joint C.J.S.D. Aurangabad that he would not be in a position to remain present at the time when the case would be taken up for hearing. It was specifically stated that he is leaving Aurangabad and going out of station on personal ground.