- (1.) NO one has appeared on behalf of the respondent despite service of notice.
(2.) LEAVE granted. The respondent filed Civil Suit N0.6A of 1989 for permanent injunction with the prayer that the appellant be restrained from taking possession of Abadi Khasra No.253/7, Plot No.1. At one stage, the suit was dismissed in default but on an application filed by the respondent, the same was restored. Thereafter, the appellant filed written statement dated 05.05.1993 and controverted the averments contained in the plaint. In 1994, the suit was transferred from the Court of XI Civil Judge, Class II, Jabalpur to the Court of II Civil Judge, Class I, Jabalpur and was registered as Civil Suit No.364/A of 1994. The transferee Court did not issue notice of the date of hearing to the appellant and decreed the suit by ex parte judgment dated 28.11.1994.
(3.) ON coming to know of the ex parte judgment, the appellant filed an application under Order 9 Rule 13 of the Code of Civil Procedure (CPC). He also filed an application under Section 5 of the Limitation Act for condonation of delay. By an order dated 17.8.2001, the trial Court dismissed the application for condonation of delay by observing that the appellant has failed to show sufficient cause for not filing the application within the prescribed period of limitation. The appeal preferred by the appellant against the order of the trial Court declining his prayer for condonation of delay was also dismissed on the ground of delay. The appellate Court noted that Shri Z.A. Azad, Advocate, who was representing the appellant, had died but observed that the appellant ought to have made alternative arrangement for obtaining copy of the order of the trial Court and filed appeal at the earliest. Civil Revision No. 387/2003 filed by the appellant against the order of the lower appellate Court was dismissed by the High Court with an observation that even if the appellant's counsel Shri Z.A. Azad died, he should have instructed the junior counsel to obtain certified copy for the purpose of filing the appeal. Learned counsel for the appellant relied upon the judgment of this Court in Reena Sadh vs. Anjana Enterprises (2008) 12 SCC 589, and argued that the judgment and decree passed by II Civil Judge, Class I, Jabalpur on 28.11.1994 is liable to be treated as nullity because the transferee Court passed ex parte decree without issuing notice to the appellant informing him about transfer of case and the date of hearing. He submitted that application under Order 9 Rule 13 was filed immediately after the appellant acquired knowledge about the ex parte decree and the trial Court committed serious error by refusing to condone the delay. Learned counsel also assailed the orders passed by the lower appellate Court and the High Court by arguing that his client cannot be accused of delay because the counsel representing him had died and he did not know about the same.;