Decided on August 08,2007

Krishna Continental Ltd Appellant
Balkrishan Sharma Respondents


J.M.MALIK,J. - (1.) VIDE order dated 4th April, 2005, the trial court dismissed the applications moved by the appellants under Order 9 Rule 13 CPC and under Section 5 of the Limitation Act. Aggrieved by that order, the present appeal has been preferred. The appellants appeared before the trial court and submitted their written statement. Thereafter, the appellants were proceeded against ex parte on 2nd August, 2004 The ex parte judgment was delivered on 19th August, 2004 The appellants moved an application under Order 9 Rule 13 CPC before the trial court. A copy of the said application was filed before me as Annexure 9 at pages 67 to 69. Para Nos. 6 and 7 of that application are reproduced as under: "6. That the Applicants/Defendants were under bona fide impression that the case is being pursued by the Counsel in the proper manner and whenever there will be any requirement of the presence of the Authorized Representative, the Counsel will inform the Applicants/Defendants. Time to time official of the Applicants/Defendants were contacting Mr.Saxena for the development of the case and getting assurance that he was pursuing the case properly and in case of any requirement he will contact the Applicants/Defendants. Mr.Saxena never informed the Applicants/Defendants that the case is fixed for admission/denial and Authorized Representative's presence is required for the same. The Counsel also, in a very unprofessional manner, without informing the Applicants/Defendants, did not appear in the case and the ex-parte order was passed. The Applicants/Defendants is separately filing an application in this regard against Mr.Saxena for the professional misconduct before the appropriate Forum. 7. That non-appearance of the Applicants/Defendants was not intentional or deliberate, it was only because of lack of the knowledge of the date of hearing, as the counsel did not inform the same. The applicants/Defendants has a very good case in their favour and only because of negligence of the Counsel after filing of the Written Statement and Documents, the Applicants/Defendants were proceeded ex-parte."
(2.) THE above-said portion given in italics and underlined by me does not form part of the original application moved by the appellants before the trial court. This sentence is conspicuously missing from the trial court record. The learned counsel for the respondent vehemently argued that this new plea has been raised unauthorisedly, illegally and without the permission of the court in order to procure a favourable order. On the other hand, counsel for the appellants submitted that, although, his signatures appear under his endorsement "true copy", yet, whatever was given to him by the appellants, he had submitted the same before the trial court. The appellants also filed an application under Section 5 of the Limitation Act. This is a one page application where no attempt was made to explain the delay. On the contrary, in the prayer clause, it was mentioned that the delay, if any, be condoned in filing the application under Order 9 Rule 13 CPC.
(3.) I have heard the learned counsel for the parties. The learned counsel for the appellants vehemently argued that the appellants had already deposited the entire decretal amount and that they should be given an opportunity of being heard. He also pointed out that the appellants had already made the payment to the respondent and for the second time, appellants had to deposit the decretal amount with this Court. He pointed out that under these circumstances ex parte decree should be set aside and an opportunity of being heard be granted in favour of the appellants. In order to embolden his case, counsel for the appellants has cited authorities reported in Collector, Land Acquisition, Anantnag v. Katiji, [AIR 1987 SC 1353], N.Balakrishnan v. M. Krishnamurthy, [AIR 1998 SC 3222], State of Bihar and Others v. Kameshwar Prasad Singh and Another with State of Bihar and Others v. Brij Bihari Prasad Singh, [JT 2000 (5) SC 389], Bharat Singh and Others v. Narender Kumar and Others [(2004) 13 SCC 691], Gobind Parshad Jagdish Parshad v. Hari Shankar and Others, [AIR 2001 Delhi 121], Dharshan Lal Dhuper v. Smt. Motia Rani and Others [110 (2004) Delhi Law Times 516], Delhi Development Authority v. Bhasin Associates, [114 (2004) Delhi Law Times 484 (D.B.)] and Sultan Singh (Since deceased now represented by Mr.Jitender Kumar Jain) v. Mrs. Raj Rani and Another, [93(2001)Delhi Law times 268].;

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