(1.) THE respondent had filed the civil suit No. 116 -A/2000 before the Addl. Dist. Judge, Bhopal against the appellants for possession and mesne profits in which 18.1.2001 was fixed for defendant's evidence. Since the defendants (appellants) did not appear nor their counsel appeared on that date, the case was proceeded ex parte and on 1.2.2001 the judgment was pronounced. On learning about the ex parte decree the appellants filed the application under order 9 rule 13 of the CPC on 18.4.2001 and later, on 28.9.2001, an application was filed under section 5 of the Limitation Act to seek condonation of delay in filing the application under order 9 rule 13. Both these applications have been disposed by the trial Court by the impugned order.
(2.) LEARNED counsel for the appellant has submitted that the appellant Abdul Aziz was 80 years old and an infirm person under medical treatment and it was not possible for him to keep himself abreast of the proceedings and he was therefore dependant on his counsel and other relations. He has further submitted that the appellant had engaged Shri Vijay Gupta, Advocate but Shri Vijay Gupta expired and thereafter the matter was not properly handled by the other advocates who appeared from his office with the result the appellant suffered an ex parte decree and therefore the judgment and decree passed ex parte deserve to be set aside. Reference has also been made to the decision of the Supreme Court in Raymond Services Pvt. Ltd. v. S. Kapoor [AIR 2001, Supreme Court 207]. Learned counsel for the respondents, per -contra, has submitted that there was no cause, muchless sufficient, for setting aside the ex parte decree. The evidence on record indicates that the defendants were aware of the proceedings in the case and therefore it was on account of their wilful abstinence that the case proceeded ex parte against them and no case was made out for setting aside the ex parte decree.
(3.) THE applicant Abdul Aziz examined himself and also examined Abdul Azim, Ifketar Ahmed, Mukteyaruddin, Abdul Aziz, Dr. R.K. Bhargav and Dr. R.K. Jain to prove the case of the appellants while non -applicants examined 2 witnesses in rebuttal. It has not been disputed that age of Abdul Aziz is about 80 years and it has also come in evidence that he was under treatment of Dr. R.K. Bhargav (AW -6) and Dr. R.K. Jain (AW -7). Dr. R.K. Bhargav has deposed that Abdul Aziz was a petient of hyper -tension and he had suffered a heart attack and was suffering from pain in the joints. He has also exhibited the certificates issued by him in this behalf. Dr. R.K. Jain, eye -specialist, has referred to the Diabetic Retino Pathy of Abdul Aziz and exhibited his certificate P -36. Therefore, there is no room for doubt that Abdul Aziz being old and infirm was unable to look after his affairs himself and had to depend on others. AW -2 Abdul Arif has stated that Shri Vijay Gupta was their counsel but he expired in the year 1999 and therefore his son Shri Ajay Gupta started looking after their case. Whenever he enquired about the case, Shri Ajay Gupta informed him that the matter was in the High Court. It was only when he learnt from Mukteyaruddin and Ifketar Naqvi that there was an ex parte decree that he took steps for obtaining certificate copy and filed the application under order 9 rule 13. Ifketar Ahmed and Mukteyaruddin corroborate the version of Abdul Arif. AW 5 Abdul Azim has also stated that whenever Shri Vijay Gupta was approached, he stated that the matter was in the High Court and it was not necessary for them to contact him till the pendency of the matter in the High Court. He has also stated that on learning from Ifketar and M. Hussain that matter was decided ex parte steps were taken by them.