OMKAR TEXTILE MILLS PRIVATE LIMITED Vs. HARDIK CHEMICALS

JUDGEMENT

(1.) This Revision Application, though filed against the impugned order dated 22-3-1990, takes within its sweep also the order dated 31-12-1990. The facts of the proceeding between the parties, therefore, need be stated : The opponent being the plaintiff filed Summary Suit No. 4747 of 1988 in the Ahmedabad City Civil Court for recovery of Rs. 1,47,600.00 with cost and interest from the applicant-defendant taking recourse to the provision of Order 37 of the Code Civil Procedure. Upon the service of summons and upon the appearance of the applicant, who is hereinafter described as defendant, the opponent (plantiff, as described hereunder) had taken out the Summons for Judgment and the defendant applied for leave to defend the suit. After hearing both the parties the learned Chamber Judge granted leave to defend the suit to the defendant on condition that the defendant would deposit Rs. 25,000.00 within six weeks from the date of the order, viz., 27th July 1989. It is undisputed that the defendant had filed Civil Revision Application No. 949 of 1989 against the said order on or about 19-9-1989 and the said Civil Revision Application was rejected on the same day. In the mean time as the time to deposit the amount expired, extension was sought on two occasions and on each of the occasions extension of one week was granted. The plaintiff had taken out Certificate of non-payment/non-compliance of the order of conditional leave by virtue of Rule 147 of the City Civil Courts Rules and such Certificate was granted on or about 21-9-1989, and on the next day, i.e., on 22-9-1989 the matter was notified for passing ex-parte decree on account of non-compliance of order for conditional leave to defend. It is the case of the defendant that the defendant's learned Advocate could not attend the matter and a decree was passed as prayed for by the plaintiff on 22-9-1989. It is also the case of the defendant that defendant came to know about this ex-parte decree on or before 16-11-1989. The defendant, therefore, filed Civil Misc. Application No. 811 of 1989 in the City Civil Court under Order 38, Rule 4 read with Sec. 151 of the C.P.C. for setting side the ex-parte decree. The defendant also deposited the amount of Rs. 35,000.00 being the amount to be deposited as directed by this Court. The application was fixed for final hearing on 22-3-1990, however, the defendant upon inquiry in the office of the trial Court came to be informed that the said Application was fixed for hearing on 4-4-1990, but the trial Court passed an order rejecting the said application ex-parte on 22-3-1990. This is the impugned order. The defendant, however, moved another application being Civil Misc. Application No. 281 of 1990 in the trial Court under Sec. 151 of the C.P.C. for setting aside the order passed by the City Civil Court, ex-parte in Civil Misc. Application No. 811 of 1989. The Civil Misc. Application No. 281 of 1990, so moved, was rejected by the City Civil Court as per its order dated 31- 12-1990 on the ground that the remedy for the applicant would have been to file an Appeal or a revision application against the order passed in Civil Misc. Application No. 811 of 1989 and not by way of filing an application for setting aside the exparte order passed in Civil Misc. Application No. 811 of 1989. This is how the defendant has challenged the impugned order dated 22-3-1990 passed in Civil Misc. Application No. 811 of 1989 claiming exemption from the Law of Limitation by virtue of Sec. 14 of the Limitation Act, on the ground that the defendant had been bona fidely procecuting his remedy with due diligence before the same Court.

(2.) After this revision application has been admitted and interim relief has been granted it has been placed for final hearing before this Court.

(3.) The challenge to this revision application is on three grounds : Firstly, it is sought to be assailed on the ground that it is not maintainable; secondly, it is barred by limitation, and thirdly, on the ground that the defendant failed to show special circumstances as contemplated under Order 37, Rule 4 C.P.C. All these defences shall be dealt with in the background of the facts as aforesaid.