BANARSI Vs. BANWARI LAL

JUDGEMENT

(1.) THE appellant -defendant has filed the present appeal under Or. XLIII R. 1(d) of C.P.C. challenging the order dated 26.8.1996, passed by the Additional District Judge, Behrod, (hereinafter referred to as the trial Court), in Civil Misc. application No. 6/1996, whereby the trial court has dismissed the application of the appellant -defendant filed under Or. IX Rule 13 of C.P.C., for setting -aside the decree dated 14.12.1993, passed by the trial court in Civil Suit No. 1/89, filed by the respondent -plaintiff. It appears that the respondent -plaintiff had filed the suit being no. 1/89 against the appellant -defendant for the recovery of Rs. 13,500/ - along with interest, in the year 1988. In the said suit one counsel Mr. Raghuveer Sing Yadav had filed his appearance for the appellant -defendant, however, subsequently he had pleaded no instructions on 6.2.1992. The trial court, therefore, had passed the order on 17.9.1992 for proceeding exparte. Thereafter the trial court considering the evidence led by the respondent -plaintiff, passed the decree on 4.12.1992 against the appellant -defendant. The appellant -defendant having come to know about the said judgment and decree, had filed the application being Misc. Application No. 6/96, under Or. IX Rule 13, for setting aside the said decree before the trial court. The said application was dismissed by the trial court vide the impugned judgment and order dated 26.8.1996. Being aggrieved by the same, the present appeal has been filed.

(2.) AT the out -set, it is required to be noted that though the present appeal is of 1996, the same remained pending for about 16 years at admission stage without any progress. Be that as it may, it further appears that the appellant -defendant had filed the application under Or IX Rule 13 on the ground that the concerned counsel was not authorized to appear on behalf of the appellant. It has been submitted by Learned Counsel for the appellant that the respondent -plaintiff had filed the Vakalatnama of the said lawyer for showing that he was appearing for the appellant -defendant, though no such lawyer was engaged by the appellant defendant. According to him, when no instructions were pleaded by the said lawyer, the trial court should have again issued notice to the appellant before proceeding exparte against the appellant.