DHRUV MANGAL Vs. SMT. SARALA DEVI KHANDELWAL

JUDGEMENT

(1.) This is an application for condoning the delay in making this application and setting aside and/or recalling the ex parte decree dated 26th July, 2000 with other consequential reliefs under which the prayer has also been made as regard to the stay of the execution application in which an order has been passed on 31st Dec., 2000. The petitioner has come at a belated stage with a plea of the aforesaid.

(2.) It is an admitted position that the defendant has not entered appearance in this suit nor has filed any written statement in this regard. Therefore, at the threshold it cannot be said that the decree was passed ex parte because there is a glaring distinction in between the decree ex parte and the decree passed in an "Undefended Suit". In other words decree in an "Undefended Suit" cannot be equated with the decree passed in ex parte.

(3.) It is a suit for ejectment in which not only a decree was passed on 26th July, 2000 but also the execution application was proceeded and an order was passed to that extent of handing over possession which has also been effected. Therefore, decree is there. Execution is there. Effectiveness of the execution is also there. Now the question before the Court is as to why the petitioner has come before this Court at so belated stage with the application. An allegation is put as against an Advocate who was engaged by the defendant. But when nobody has entered appearance by filing vakalatnama in this suit that submission of engagement of an Advocate in this suit does not find place. It is also important in this aspect that although the petitioner/defendant made various submissions making allegation to the erstwhile Advocate who, according to her, entered appearance in the interlocutory application but even no such vakalatnama has been filed in the interlocutory application. The application is totally misconceived in nature and outcome of various false statements as apparent therein. The medical certificates of the petitioner have been incorporated for the period of 1998, 1994 and 1997 when the suit was instituted in the year 2000. Therefore, such medical ground as taken by the petitioner cannot be acceptable. Since no vakalatnama has been filed either in the suit or in the interlocutory application there is no question of any contractual relationship in between themselves arose to make such an allegation so boldly before the Court. The conduct of the petitioner does not also seem to be very much clear for the sake of test of bona fide. An explanation is given in paragraph 8 that he had a knowledge of the suit on 24th March, 2000 but what prevented him in taking steps for filing vakalatnama in the suit as well as filing written statement is unknown to this Court. The expression as given as to the enquiry of the son of the petitioner as to the filing of the affidavit-in-opposition or written statement cannot also be acceptable because such enquiry of a layman will come forward when he did so but before doing the same he, not being a technical expert, cannot enquire as to the legality of the same in filing so correctly. Therefore, in coming to a question of what is to be done in an application under Order 9 Rule 13 of the Code of Civil Procedure one has to ascertain the position of that case alone since each and every case has different factual aspect. More particularly what was sufficient cause in preventing the petitioner on the particular date in coming to the Court of law when the decree was passed ? There was no sufficient cause prevented because the defendant did not chose to file vakalatnama nor to file any written statement. Therefore, principally the concept of Order 9 Rule 13 of the Code of Civil Procedure cannot be made applicable herein. Therefore, giving an anxious thought to all aspects of the matter at this belated stage I do not find the decree and the order under execution which has already been taken effect should be interfered with by this Court. Balance of convenience does not speak so. Under such circumstances the applicable stands dismissed. However, no order is passed as to costs.