COAL INDIA LTD Vs. ETHELBARI TEA COMPANY LTD

JUDGEMENT

(1.) This appeal is directed against the Order No. 24 dated 31 May 1986 passed by Shri A K. Dutta, learned Judge 9th Bench, City Civil Court, Calcutta, in Misc. Case No. 874 of 1985. By the aforesaid impugned order, the learned trial Judge had rejected the application under Order 9 Rule 13 of the Civil Procedure Code filed on behalf of the defendant/appellant herein.

(2.) The plaintiff/respondent filed a money suit being No. 732 of 1983 against the defendant/appellant on 16.9.1983 for recovery of price of coal paid in advance together with interest The learned Court below issued summons for appearance of the defendant/appellant on 24.2.1984 under Order 5 Rule 19A of the Civil Procedure Code. The summons issued in the ordinary manner was not received back on 24.2.1984 but on this date, summons sent through registered post with A.D. to defendant/appellant was received back after service but the defendant/appellant did not appear. Hence the learned Trial Court fixed 28 2.1984 for ex parte hearing of the suit. The ex parte hearing of the suit was adjourned on several days that is on 24.4.84, 12.6.84, 23.7.84, 12.9.84, 4.12.84 , 1.2.85, 22.3.85 and 18.4.85 on various reasons and ultimately on 12.6.1985 vide Order No.14 the following order by the learned Trial Court came to be passed: -

(3.) On 9.8.1985, the defendant/appellant filed an application under Order 9 Rule 13 supported by an affidavit for restoration of the money suit being No. 732 of 1983 after setting aside the ex parte decree which was dismissed by the learned Trial Court on 31.5.1986 after hearing the learned Counsels appearing for the parties. The said order of the learned Trial Court is extracted below: -