- (1.) HEARD learned counsel for the parties.
(2.) THE present appeal has been filed by the defendant- appellant- Vardhman Silk Mills Pvt. Ltd. being aggrieved by the order dated 23.02.2002 by which the learned trial court rejected its application under Order 9 Rule 13 CPC for setting aside the exparte decree dated 12.08.1999 passed in a money recovery suit filed by the respondent-plaintiff- Union Bank of India, viz. Civil Suit No.99/97, which was decreed for a sum of Rs.3,71,391/- on 12.08.1999. By the impugned order dated 23.02.2002, the learned trial court has rejected the said application merely by observing that since the judgment and decree has been given on merits after giving opportunity of hearing to both the parties, therefore, the application under Order 9 Rule 13 CPC is not maintainable; and therefore, the same was rejected. Mr. Laxmi Mal Lodha, learned counsel for the appellant- defendant-company drew the attention of the Court towards the order dated 10.08.1999 of the learned trial court, which was passed only two days before the exparte decree dated 12.08.1999 was passed, and submitted that the defendants had instructed their new counsel in the matter, namely, one Mr. Kamar Hussain in place of earlier counsel Mr. Mohd. Sharif Chhipa, as the director of the company, looking after the affairs of the defendant-company was away to Dubai. He also submitted that even though the said new counsel, namely, Mr. Kamar Hussain had appeared before the court below on 10.08.1999 and prayed for some time to file his own "Vakalatnama" and also requested the court to allow opportunity to cross-examine the witness of the plaintiff-Bank, Mr. K.N. Bhargav, the learned trial court below refused such opportunity and kept the matter for final arguments only after two days i.e. on 12.08.1999, when the exparte decree was passed. Mr. Laxmi Mal Lodha further submitted that a serious prejudice has been caused to the defendant-appellant company by the denial of such an opportunity to the counsel for the defendants to cross-examine the witness of the plaintiff-Bank, and consequently, the exparte money decree deserved to be set aside. He submitted that neither 'Bilties' of the goods were handed over by the plaintiff- Bank, nor the money realized by them against such 'Bilties' and, therefore, the decree is unjustified. He also urged that the reasons given by the learned trial court in the impugned order dated 23.02.2002 rejecting application under Order 9 Rule 13 CPC that since judgment has been rendered on merits after giving an opportunity of hearing, the application under Order 9 Rule 13 CPC is not maintainable is not correct premise and the exparte decree deserves to be set aside, if reasonable cause for non- appearance/non-prosecution of the case on a particular date viz. 10.08.1999 was made out by the defendants. On the other hand, Mr. M.C. Purohit, learned counsel appearing on behalf of respondent-plaintiff Bank opposed the present appeal and submitted that the exparte decree deserves to be maintained and the court below has rightly rejected the application filed by the defendants under Order 9 Rule 13 CPC.
(3.) HAVING heard learned counsel for the parties, this Court is of the opinion that a miscarriage of justice has resulted in the present case. The defendant-company was denied opportunity to cross-examine the witness of the plaintiff-Bank only two days prior to passing of the exparte decree, even though, a new counsel in place of earlier counsel had appeared and submitted before the learned trial court that he may be permitted to file his own "Vakalatnama" and since the authorized signatory was away to Dubai, therefore, he may be some time to produce his "Vakalatnama" and also an opportunity to cross-examine the witness/es of the plaintiff-Bank. Prima-facie, there was no justification for the learned trial court to deny such an opportunity to the counsel for the defendants to cross-examine the plaintiff's witness, nor there was any tearing hurry to pass exparte decree only two days thereafter on 12.08.1999. The suit itself was filed in the year 1997 and, therefore, a reasonable opportunity ought to have been granted to the defendants to cross-examine the plaintiff's witnesses; and in the absence of the same, this Court is of the opinion that serious miscarriage of justice has resulted, even though the witness was present on the previous occasions on 22.07.1999 and 23.07.1999 and again on 10.08.1999 but in the circumstances narrated in the application under Order 9 Rule 13 CPC since the earlier counsel Mohd. Sharif Chhipa was not pleading the case of the defendants- appellants, that is why a new counsel was engaged by the defendant-company and he appeared before the court below on 10.08.1999 and prayed for some time to file his "Vakalatnama" and further time to cross-examine the witness of the plaintiff-Bank. In these circumstances, this Court is of the opinion that the exparte decree deserves to be set aside and the court below has erred in rejecting the application under Order 9 Rule 13 CPC on the wrong premise that the judgment rendered on merits even though exparte, cannot be set aside on such an application under O. 9 R. 13 CPC; and the present appeal deserves to be allowed and the same is hereby allowed. The impugned order dated 23.02.2002 as well as the exparte decree dated 12.08.1999 in the Civil Suit No.99/97- Union Bank of India Vs. Vardhman Silk Mills Pvt. Ltd. & Ors. is set aside and the trial is restored back to the learned trial court at the stage of 10.08.1999, however, in view of long lapse of time, learned trial court is expected to expedite the trial and decide the suit again on merits within a period of six months from today. The parties may appear before the learned trial court in the first instance on 09.07.2012 (Monday). No costs. ;