Decided on October 23,2007

Emirates Airlines Limited Respondents


BADAR DURREZ AHMED,J - (1.) THIS order shall dispose of the above mentioned four applications. IA 2357/2007 is an application for amendment of IA 7295/2006 which has been filed under Order 9 Rules 7 and 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). This application seeks to carry out minor amendments and the same is allowed. The amended application is taken on record.
(2.) IA Nos.7295/06 and 2358/2007 are taken up together. As mentioned above, IA 7295/2006 is an application under Order 9 Rules 7 and 13 for setting aside the ex parte decree dated 14.12.2005 as also the ex parte order dated 23.01.2004. These applications have been filed on behalf of the defendant No.1. IA 2358/2007 is an application under Section 5 of the Limitation Act for condoning the delay in filing IA No.7295/2006. The summons issued to the defendant No.1 was served upon defendant No.1 on 28.02.2003. Since nobody appeared on behalf of the defendant No.1, this court passed an order directing the suit to proceed ex parte as against the said defendant on 23.01.2004. As per the defendant No.1, the reason for non- appearance on 23.01.2004 as well as on other dates was that the matter being a cargo claim arising out of Airway Bills issued at Mumbai had been entrusted to the Cargo Manager, Mumbai of the defendant No.2, namely, Mr Rettiganti. As per the said defendant No.1, there was correspondence between the plaintiff and the said Mr Rettiganti. It is also submitted that at the relevant time Mr Rettiganti was suffering from cancer and he eventually died on 25.10.2003. It was submitted on behalf of the defendant No.1 that in all probability, Mr Rettiganti was unable to give due attention to this matter on account of his ill health. Even after his death on 25.10.2003, no steps were taken by the defendant No.1 to put in appearance before this court or to take appropriate steps for setting aside of the decree within the limitation period of 30 days as the file and other related documents pertaining to this matter were not found at Mr Rettiganti's work station after his death. It is, therefore, submitted that his successor remained unaware of the pendency of this matter till the defendant No.1 received a copy of the ex parte decree at its Mumbai office in the first week of June, 2006, which was presumably sent by the plaintiff. It was also submitted that as soon as the copy of the ex parte decree was received by the defendant No.1, steps were taken for setting aside of the same.
(3.) RELIANCE was placed by the defendant No. 1 on a decision of a learned single Judge of this court in the case of Indradhanush T.V. Pvt. Ltd. (M/s. v. National Film Development Corporation : 2006 IIIAD (Delhi) 104. At the outset, I may state that this decision would not be applicable and/ or relevant to the present case inasmuch as it is a decision rendered in respect of Order 8 Rule 1 CPC, whereas the present case is one under Order 9 Rules 7 and 13 CPC. A plain reading of Order 9 Rule 13 would indicate that an ex parte decree may be set aside if the court is satisfied that the summouns was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case, it is an admitted position that the summons had been duly served, therefore, it is incumbent upon the defendant No. 1 to establish and satisfy tis court that the defendant No. 1 was prevented by sufficient cause from appearing when the suit was given by the defendant No.1 is that when the summons were received, the Cargo Manager (Mr Rettiganti ) was sufering rom caner and that he ultimately died on 25.10.2003. Aand that, it is because of this that the defendant was prevented from appearing before this court when the suit was called on for hearing.;

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