D.A.DESAI - (1.) Petitioner in these three revision applications is Asian Steel and Metals Private Limited a company registered under the Com- panies Act 1956 Petitioner questions the legality and correctness of the order made by the learned City Civil Court Judge on 30th April 1976 by which the application made by the petitioner who is original defendant No. 2 to set aside ex parte decree made in three suits and permit it to participate in the suit and defend the suit was dismissed with costs. Parties are the same in all the three petitions and contentions are entirely identical and therefore all the three Civil Revision Applications can be conveniently disposed of by this common judgment.
(2.) A few facts leading to the Revision Petition may be stated. Oppo- nent No. 1 in each petition filed three different suits being Civil Suits Nos. 1942 of 1979 1941 of 1972 and 2161 of 1972 for recovering various amounts from the present petitioner and opponent No. 2. Each suit was a summary suit and on summons for judgment being taken out the defendants in the suit including the present petitioner applied for and obtained unconditional leave to defend the suit. On the leave being gran- ted the suits were transferred as Long Cause and were pending for hearing. All the three suits were first notified for final hearing on 10th November 1974 and came to be adjourned in course of time to 3rd December 1974 when the Advocate appearing for the present petitioner who was defendant No. 2 submitted a statement saying that he had no further instructions in the matter on behalf of both the defendants and both the defendants were absent. Evidence on behalf of the plaintiff was recorded and ex-parte decree was made on 5th December 1974 Original defendant No. 1 has accepted the decree because he has neither applied for setting aside the decree nor has preferred appeal against the decree. Present peti- tioner original defendant No. 2 gave an application on 24th February 1975 in each suit for setting aside the ex parte decree and permit it to participate in the proceeding and to hear the proceedings from the stage where suits were proceeded ex parte. These Applications were Civil Miscellaneous Application No. 68 of 19/5 in Suit No. 1942 of 1975 67 of 1975 in Suit No. 2161 of 1972 and 69 of 1975 in Suit No. 1941 of 1972. Original plaintiff resisted three applications and the learned Judge by his identical order dated 30th April 1976 rejected the applications with costs. Petitioner has preferred the present three revision applications being 660 of 1976 661 of 1976 and 662 of 1976 respectively questioning the correctness of the aforementioned decision of the learned City Civil Court Judge refusing to set aside the ex parte decree.
(3.) Mr. R. N. Shah learned Advocate who appeared for the petitioner in each of these petitions urged that the applications for setting aside ex parte decree and restoring the suit to file would be governed by 0 37 R. 4 of the Code of Civil Procedure and would accordingly be governed by residuary Art. 137 of the Limitation Act and therefore limitation would be of three years from the date when the ex parte decree was made Alternatively it was contended that if proceeding would be governed by O. 9 R. 13 Article 123 of the Limitation Act 1963 would apply and the application for restoring the suit to file would be time barred but the evidence led by the petitioner would affirmatively show that he was pre- vented by sufficient cause from filing the application in time and therefore delay should have been condoned.;