LUXMI ENTERPRISES Vs. GOPAL SOAP INDUSTRIES

JUDGEMENT

(1.) RESPONDENT -defendant suffered an exparte decree dated 1.8.2003. He filed an application under Order 9 Rule 13 CPC for setting -aside of the said exparte decree, which was allowed by the Court on 25.10.2005 subject to the condition of furnishing bank guarantee by the respondent -defendant for a sum of Rs. 8 lacs. This order has been complied with and a bank guarantee of Rs. 8 lacs is duly renewed upto 15.2.2007. In fact, the defence of the respondent - defendant had also been struck off on 7.8.2002, which he inadvertently could not challenge while seeking setting -aside of the exparte decree granted on 1.8.2003, as referred to above. This order accordingly was standing in the way of the respondent -defendant even after setting -aside of the exparte decree. The respondent - defendant, as such, filed an application under Section 151 CPC for setting -aside/recall of the order dated 7.8.2002, so as to allow them to file a written statement.

(2.) THE respondent had been allowed to intervene in the proceedings of the suit on or after 7.8.2002. This was impugned by the respondent -defendant by filing a Revision Petition No. 6939 of 2005. This Court, however, observed that in the absence of challenge to the order dated 7.8.2002, it would not be appropriate to allow the respondent -defendant to file written statement at this stage. This Court, however, gave liberty to the respondent -defendant through its order dated 15.9.2006 to seek appropriate remedy so as to enable it to file written statement. Accordingly, respondent - defendant filed an application before the trial Court for recalling/setting -aside of the order dated 7.8.2002.

(3.) I have heard learned Counsel for the parties. Once the exparte decree has been set -aside by the Court, then the respondent has rightly been given chance to contest the suit. The order, setting -aside the exparte decree, would be rendered meaningless if the respondent is not allowed to file the written statement on the ground that its defence was struck off on 7.8.2002. This Court had given a liberty to the respondent to move an application before the trial Court for recall of the order dated 7.8.2002, especially due to observations made in order dated 16.5.2006 wherein it was observed that the respondent had not challenged the order dated 7.8.2002 and it would not be appropriate for this Court to allow him to file written statement.