Sunil Hali, J. - (1.) The suit for injunction was filed against the respondents which was decreed exparte on 22.2.1989. An application for setting aside the same was filed by the petitioner on the ground that he could not appear on 21.2.1989 on account of strike of lawyers. As a matter of fact even the plaintiff and respondents did not appear on that date. The trial court is stated to have heard the arguments on the said date and the matter was directed to be listed on 22.2.1989 for judgment. On the said date, the exparte decree was passed. The application of the petitioner for setting aside of the decree was rejected on the ground that the decree has been passed on merits and the present application was not maintainable. An appeal against that order was filed before the Additional District Judge-17, Allahabad, which was also dismissed.
(2.) The short grievance of the petitioner is that the exparte decree was passed on 22.2.1989 when both the parties were not present. The court on 21.2.1989 has recorded that no body has appeared on behalf of the parties. While saying so it was mentioned that the arguments have been heard. First error committed by the trial court was that it should have dismissed the suit in default when the parties were not present. He is stated to have heard the arguments when none of the parties were present. It was the second error committed by the trial court. The reason for rejecting the application for setting aside the decree was that the case has been decided on merits, as such, no application under Order 9 Rule 13 CPC is maintainable. The present case is covered under Order 9 Rule 13 CPC. It is contended by the learned counsel for the petitioner that the order has not been passed in terms of Order 17 Rule 3 CPC which presupposes the presence of the petitioner but? under Order 17 Rule 2 CPC where presence of one of the parties is necessary.Once an order has been passed under Order 17 Rule 2 CPC the appropriate remedy available to the person is to either file an appeal against the decree or to file an application under Order 9 Rule 13 CPC. Once the application under Order 9 Rule 13 CPC is filed, the court is called upon to examine the ground for setting aside the exparte decree. There are two grounds under Order 9 Rule 13 CPC (i) that? there has not been sufficient service on the defendants or (ii) that there was sufficient cause for the applicant's failure to appear in the court. In the present case, the learned counsel for the petitioner states that on account of lawyers' strike the petitioner was prevented from appearing in the court on 21.2.1989 and a result of which, he did not have the knowledge that the matter is listed for 22.2.1989. Surprisingly there is no finding recorded by the trial court on this question. The trial court's finding that the case has been decided on merits, as such, application under Order 9 Rule 13 CPC is not maintainable, is legally incorrect.
(3.) In the cases where decree is passed either after hearing? the parties or exparte, the matter is required to be decided on merits. The remedy for setting aside the exparte decree is either to prefer an appeal or to file an application under Order 9 Rule 13 CPC. The grounds for setting aside the decree are enumerated hereinabove.;