OM PARKASH Vs. MANOJ KUMAR AND OTHERS

JUDGEMENT

(1.) INSTANT revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 12.3.2010 passed by the learned Additional Civil Judge (Sr. Divn.), Gurgaon whereby application moved by respondent no. 1 -defendant no. 4 under Order 9 Rule 13 of the Code of Civil Procedure (in short "the CPC") for setting aside the order dated 6.1.2000 and ex parte judgment and decree dated 16.9.2000, has been allowed. Briefly stated, the facts of the present case are that respondent no. 1 -defendant no. 4 earlier appeared in pursuance to the notice issued in civil suit and engaged counsel to represent him in trial Court. Respondent no. 1 was represented by his counsel who told him that he need not appear on each and every date and that respondent no. 1 would be informed as and when required for appearing in person. During the pendency of suit, respondent no. 1 was proceeded against ex -parte on 6.1.2000 along with other defendants and thereafter exparte judgment and decree were passed on 16.09.2000. For setting aside the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000, respondent no. 1 -defendant no. 4 moved an application before the trial Court which was vehemently opposed by the petitioner. The trial Court framed the following issues vide order dated 31.7.2006:

(2.) WHETHER the applicant -defendant no. 4 is entitled to get the ex parte judgment and decree dated 16.09.2000 be set aside? OPP

(3.) LEARNED senior counsel for the petitioner has vehemently contended that respondent no. 1 -defendant no. 4 engaged Sh. D.R. Lakhani, Advocate to pursue on his behalf. The said counsel represented respondent no. 1 -defendant no. 4 on some dates, however, could not appear on 6.1.2000 and ultimately, respondent no. 1 -defendant no. 4 was proceeded against ex parte. It has been further contended that the trial Court had passed the ex parte order dated 6.1.2000 correctly, as respondent no. 1 -defendant no. 4 had not been appearing before the Court in person too and respondent no. 1 was not taking proper care of the proceedings. Hence, the ex parte order dated 6.1.2000 and ex parte judgment and decree dated 16.09.2000 have been wrongly set aside by the trial Court.