CHHITAR MAL SAINI Vs. BASANTI

JUDGEMENT

(1.) The present appeal filed under Order 43, Rule 1 (d) of Civil Procedure Code, 1908 is directed against the order dated 2nd Feb., 2012 passed by the Additional District and Sessions Judge (Fast Track) No. 2, Sikar (hereinafter referred to as the Trial Court') in Civil Misc. Case No. 25 of 2009, whereby the Trial Court has dismissed the application of the appellant-defendant filed under Order 9, Rule 13 of Code of Civil Procedure for setting aside the ex parte decree dated 7th Feb., 2005 passed in Civil Suit No. 60/01 (3/2000).

(2.) In the instant case, it appears that the respondents-plaintiffs had filed the suit seeking compensation against the appellant-defendant for the death of Ramkumar, who happened to be the father of the respondents-plaintiffs, and for the death of Murlidhar, who happened to be the brother of the respondents-plaintiffs. Initially the said suit was filed in the Court of Neem Ka Thana, and subsequently the said suit was transferred to the Court of Sri Madhopur. According to the appellant, he had engaged an Advocate named Rajendra Gupta at Neem Ka Thana, who had filed his appearance, and also remained present before the Court, however, after the transfer of the case from Neem Ka Thana to Sri Madhopur, the said Advocate did not remain present, as a result thereof, the Trial Court passed the ex parte judgment and decree dated 7th Feb., 2005, awarding compensation of Rs.2,25,000.00 for the death of Ramkumar and Rs.2,00,000.00 for the death of Murlidhar. The appellant, having come to know about the said decree, had filed the application under Order 9, Rule 13 for setting aside the said decree, however, the said application has been dismissed by the Trial Court vide the impugned order dated 2nd Feb., 2012.

(3.) It has been sought to be submitted by the learned counsel Mr. Mahesh Gupta for the appellant that it was sheer negligence on the part of the concerned Advocate, who did not remain present before the Trial Court, which resulted into an ex parte decree against the appellant. He submitted that the appellant should not be made to suffer on account of the fault on the part of the lawyer.