MATAJI DEI Vs. BABAJI SAHU

JUDGEMENT

(1.) Defendant No. 6 is the petitioner against the orders of the Courts below refusing to set aside the ex parte decree.

(2.) Plaintiff-opposite party No. 1 had filed T.S. No. 85 of 1985 for partition. The suit was posted to 25-7-1989 for hearing. In application for adjournment was filed on behalf of defendant No. 6 on the ground of her illness. However, the said application was rejected and subsequently the case was taken up for hearing and decree was passed. Defendant No. 6 filed Misc. Case No. 309 of 1989 under Order 9, Rule 13, Code of Civil Procedure (hereinafter referred to as the "C.P.C.") for setting aside the ex parte decree. In the said petition it was claimed that she could not attend the Court on the date of hearing as she was suffering from filarial fever. The said application was rejected by the trial Court mainly on the ground that the decree against defendant No. 6 was not ex parte, but a contested one. It was also observed that the plea of defendant No. 6 regarding her illness not being supported by any medical evidence was not acceptable. In the appeal filed by defendant No. 6, the appellate Court held that, in fact, the decree was ex parte so far as defendant No. 6 was concerned and as such, the petition under Order 9, Rule 13, C.P.C. was maintainable. However, the appellate Court held that the plea regarding,illness had not been established. Accordingly, the appeal was dismissed.

(3.) The learned counsel appearing on behalf of the plaintiff-opposite party No. 1 has raised a preliminary objection regarding the maintainability of the application under Order 9, Rule 13, C.P.C. on the ground that in the judgment and decree it was shown as it defendant No. 6 had contested the suit and since it was not an ex parte decree, the application under Order 9, Rule 13, C.P.C. was not maintainable. The lower appellate Court has held that, in fact, the decree was an ex parte decree though in the judgment and decree it was shown as if the defendant had contested. On going through the order sheet and other records, find that the observation of the lower appellate Court is correct. On 25-7-1989 when the case was posted for hearing, an application for adjournment had been filed and the trial Court while rejecting the said application for adjournment directed defendant No. 6 to gel ready at once. However, the records do not indicate that defendant No. 6 or her counsel participated in the hearing thereafter either on that date or on the next date when the hearing was completed. There is no material to indicate that the witness examined on behalf of the plaintiff had been cross-examined by defendant No. 6. Merely because it was shows that the decree was a contested one so far as defendant No. 6 was concerned, it cannot be held that the application under Order 9, Rule 13, C.P.C. was not maintainable. It may be that since defendant No. 6 had filed written statement and was contesting on earlier dates, the trial Court has come to the conclusion that it was a contested decree so far as defendant No.6 is concerned. However, keeping in view the principles decided in the decision of this Court reported in (1970) 36 Cut LT 400 (M/s Hindustan Steel Limited Vs. Shri Prakash Chand Agarwal) and the materials on record, it is apparent that though defendant No. 6 had appeared on earlier occasion, on the dates when the case was taken up for hearing neither she, nor her advocate had participated. The lower appellate Court has rightly concluded that the decree was, indeed, an ex parte one against defendant No. 6 and the applicant on under Order 9, Rule 13, C.P.C. was maintainable.