Ashwani Kumar Mishra, J. - (1.) A suit for permanent injunction was filed in the year 1972, wherein a joint written statement was filed disputing the claim of plaintiff for grant of injunction. The suit was decreed ex-parte on 25th February, 1982. An application for restoration under Order 9, Rule 13 of CPC by the defendants was allowed on 19th October, 1985. Thereafter, the suit was dismissed in default on 30th April, 1986. An application for restoration was filed after service of notice upon the counsel appearing for the defendants, who made an endorsement that the case file has already been taken by the client from him about two years back, and therefore, notices be issued in the matter. This endorsement by the lawyer appearing for the defendants was treated to be sufficient service of notice upon the defendants, and the restoration was allowed, whereafter suit was also decreed ex-parte on 5th January, 1988. Having come to know about passing of the ex-parte decree, the defendants filed an application for setting aside the ex-parte decree under Order 9, Rule 13 CPC alongwith an application to condone the delay. This application alongwith delay condonation application was rejected. A misc. appeal was also preferred against it, which too met the same fate. Aggrieved by two orders rejecting the delay condonation application, the defendants petitioners have filed the present writ petition.
(2.) Learned counsel for the petitioners submits that once the lawyer appearing for the defendants had made an endorsement upon the restoration application that the litigant has already withdrawn the file from him, as such, he had no authority in the matter to appear on behalf of the defendants, thereafter service of notice of the restoration application upon the counsel could not have been treated to be sufficient service of notice upon the defendants, and consequently, the only course open for the court concerned was to issue fresh notices to the defendants. It is submitted that since no notice was issued to the petitioners, the restoration application was allowed ex-parte, whereafter, the suit was also decreed ex-parte. The defendants had no knowledge of the proceedings, and the application to condone the delay, and for setting aside the decree has been filed, after they have come to know of it. He submits that there was a procedural defect in restoration being allowed, and the suit being decreed ex-parte, which was attributed to the court proceedings itself, and therefore, once this aspect has been highlighted before the courts below, the application ought to have been allowed.
(3.) Learned counsel for the respondent, on the other hand, submits that statement that the file had been withdrawn from the counsel was factually incorrect, as it has been observed by the court concerned that the same counsel had appeared in the proceedings about six months earlier, and therefore, his statement that file has been withdrawn about two years back, cannot be believed, and the court concerned has rightly disbelieved the same.;