BENIBAI Vs. CHAMPABAI

JUDGEMENT

(1.) The appellant defendant who was proceeded ex parte in C.S. No.1-A of 1987 by the Court of 1st Addl. Judge to the Court of District Judge, Sagar during the pendency of this suit itself on 16-10-90 moved an application u/O.IX, R.7, C.P.C. for setting aside the ex parte order which was passed against her on 27-6-9O. The said application was hotly contested by the plaintiff who had by then produced the evidence and was awaiting the judgment.

(2.) After hearing the parties, the learned trial Court came to the conclusion that as the case was fixed for delivery of judgment, nothing further remained to be done by the parties, and application u/O.IX, Rule 7 would not lie. It, however, gave liberty to the defendant that the grounds raised in support of the application u/O.IX, R.7, C.P.C. can be raised in an application u/O.IX, Rule 13, C.P.C. Immediately after the ex parte judgment was delivered, the applicant/appellant moved an application u/O.IX, R.13, C.P.C. which was registered as M.J.C. No.3 of 1993. The said Court i.e. IV Additional Judge to the Court of District Judge, Sagar issued notice of the said application to the plaintiff/respondent who again opposed the application. The appellant, in the application, contended that the Court proceedings, recording the presence of Shri Lokras were among. The appellant being sick and infirm and as she was residing at Jabalpur, she was unable to attend the Court. She also submitted that she was not knowing the dates, therefore, she could not make proper arrangements. The plaintiff/respondent, in reply, inter alia contended that the defendant was negligent in conduction of the proceedings. There was no sufficient cause, the correctness of the Court proceedings could not be challenged and neither the appellant was sick or infirm nor there existed any sufficient cause in favour of the appellant for setting aside the ex parte decree.

(3.) The parties led the evidence. After considering the evidence and hearing the parties, the learned trial Court came to the conclusion that the appellant could not make out a sufficient cause for setting aside the ex parte decree. The trial Court also held that the correctness of the Court proceedings could not be doubted and the appellant although (sic) the proceedings was negligent. The said order was passed on 23-12-92. Being aggrieved by the said order the appellant has preferred this appeal u/O. XLIII, Rule 1-D of the Code of Civil Procedure.