M/S. ANUPAM LUBRICANTS LIMITED Vs. NARENDRA KUMAR SETHI

JUDGEMENT

(1.) The present appeal filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 is directed against the order dated 05/10/2009 passed by the Additional District Judge (Fast Track) No.2, Jaipur District, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Case No.151/2008, whereby the Trial Court has dismissed the application of the appellants/defendants filed under Order IX Rule 13 of CPC, for setting aside the exparte judgment and decree dated 07/03/2008 passed in Civil Suit No.64 of 2003 (24 of 2001).

(2.) At the outset, it is required to be stated that the exparte decree dated 07/03/2008 passed by the Trial Court was sought to be set aside by the appellants-defendants by filing application under Order IX Rule 13 of CPC in June, 2009, and the said application came to be dismissed vide the impugned order dated 05/10/2009. Pending the present appeal, the Court had initially directed the parties to maintain status quo as per the order dated 30/10/2009, however, thereafter had directed the appellants to deposit the amount in terms of the decree, as per the order dated 29/01/2010. The learned counsel for the appellants therefore had sought time, which was granted by the Court. On 05/03/2010, the learned counsel for the appellants again had sought time for two months to deposit the amount of Rs. 15 lacs with the Trial Court. The said time was also granted by the Court as per the order dated 05/03/2010. The matter was thereafter adjourned from time to time, however, appellants did not deposit the said amount nor the concerned Counsel for the appellants had remained present on the dates i.e. 06/08/2010, 15/09/2010 and 23/09/2010. Since there was no interim order in force against the execution of the decree in question, it appears that the respondents had taken over the possession of the suit premises on 24/07/2012, though the process of Court in the executing proceedings. The learned counsel Mr. Parag Rastogi for the respondent No.1 has placed on record the certified copies of the order sheets of the execution proceedings being No.198/2012. During the course of arguments, the learned Senior Counsel Mr. R.K. Agarwal for the appellants has also placed on record the copy of the Hindustan Times dated 25/3/2003 to show that on the relevant date i.e. 25/03/2003, the notice was not published in the New Delhi Edition of the said local daily. The said copy of the newspaper is taken on record.

(3.) The short facts giving rise to the present appeal are that the respondent No.1/plaintiff had filed the suit against the appellants/defendants for eviction on various grounds, for fixation of the standard rent, and for permanent injunction. In the said suit, the appellants/defendants were sought to be served initially by ordinary course, by affixing, by registered post, and then by substituted service permitting the respondent/plaintiff to serve the appellants by publication in the Daily Newspaper Hindustan Times, Jaipur Edition as well as New Delhi Edition, as per the order dated 07/02/2003. Since nobody appeared for the appellants/defendants in the suit, the Trial Court passed the order on 22/05/2003 for proceeding exparte against the appellants/defendants. It appears that thereafter the Trial Court passed the decree after appreciating the evidence on record on 07/03/2008. According to the appellants/defendants, they came to know about the said exparte decree on 01/05/2008, and after obtaining the certified copy of the said decree, they filed application under Order IX Rule 13 CPC for setting aside the said exparte decree somewhere in June, 2008. The said application has been dismissed by the Trial Court vide the impugned order dated 05/10/2009. Being aggrieved by the same, the present appeal has been filed.