MADHO SINGH Vs. RAMKALI

JUDGEMENT

(1.) This petition is directed against the order dated 16.5.2013 whereby the application preferred by the petitioner under Order 9 Rule 7 C.P.C. is rejected by the Court below.

(2.) The plaintiffs filed a suit against defendants/petitioners. In the said suit, the Court below fixed a date for plaintiffs' evidence. On the said date, i.e., 22.3.2013, the petitioners/defendants could not appear. The Court below proceeded ex-parte against the defendants. The petitioners/defendants preferred an application under Order 9 Rule 7 C.P.C. (Annexure P-6) dated 9.5.2013. The said application was supported by an affidavit. In the said application, it was contended by the petitioners/defendants that the civil suit was fixed on 22.3.2013. On the said date, the petitioners/defendants were required to go to Ambah where their relative Resham was seriously ill. On 10.4.2013 his relative Resham expired because of said ailment. Because of death of Resham, the defendants again went to Ambah and remained there till 18.4.2013, the date of 13th day ceremony. Thereafter, the petitioners came back to their place but during this time the daughter of Madho (petitioner No.1) became unwell. To attend the daughter, the defendants were required to visit Orai (U.P.). They came from Orai on 7.5.2013 and then contacted their counsel. The counsel informed that Court below has passed an ex-parte order against them. For these reasons it was prayed that the absence was for the reasons which were beyond the control of the petitioners and, therefore, application under Order 9 Rule 7 C.P.C. be allowed. The Court below rejected the said application on the ground that along with the said application preferred under Order 9 Rule 7 C.P.C., no application for condonation of delay is filed. The averments mentioned in the application are not trustworthy. The statement of counsel that he was busy in other court on 22.3.2013 was also held to be unreliable.

(3.) Shri S.K.Shrivastava, learned counsel for the petitioner, submits that there is no limitation prescribed under Order 9 Rule 7 C.P.C. He further submits that the application was supported by an affidavit and, therefore, there was no reason to disbelieve the same. He submits that the Court below has taken a hyper technical approach.