SHRIPATHI Vs. M/S GARG TREADING COMPANY

JUDGEMENT

(1.) THE appellants/defendants have filed the appeal under order 43 Rule 1 (d) of the Code of Civil Procedure being aggrieved by the order dated 3.10.2003 passed by the Court of Additional District Judge Sabalgarh District Morena in M.J.C.No.18 of 1998 whereby, the application under Order 9 Rule 13 of the Code of Civil Procedure filed by the appellants/defendants for setting aside the exparte judgment and decree dated 3.3.1997 passed by Additional District Judge Sabalgarh District Morena in Civil Suit No.10A of 1995 was dismissed. In this appeal, the appellants are referred to as "defendants" and the respondent as "plaintiff"'.

(2.) THE admitted facts of the case are that the plaintiff M/s Garg Trading Company filed a suit bearing No.10A of 1995 for declaration and mandatory injunction against the appellants/defendants in which, the date 16.9.1996 was fixed for filing written statement of the appellants. On the said date, presiding officer was on leave, therefore, the Reader fixed further date on 8.10.1996. On the fixed date, none appeared on behalf of the defendants in the suit and consequently, the exparte proceedings were drawn up against the defendants and learned trial Court after recording exparte evidence of the plaintiff, decreed the suit vide judgment and decree dated 3.3.1997.

(3.) DENYING the averments made in the application, the plaintiff filed reply stating therein that it was the duty of the defendants to have remained vigilent and holding their Advocate solely responsible for the absence is not acceptable. The defendants must have contacted their counsel to obtain the progress of the case and if they had done so, they could have very well known about the date 8.10.1996 fixed for filing the written statement. But by not doing so, they are themselves responsible for the exparte judgment and decree against them and they cannot be excused for their default in the application filed under Order 9 Rule 13 of CPC. Hence, the application so filed along with application under Section 5 of the Limitation Act deserve to be rejected.