Bela M. Trivedi, J. - (1.) WITH the consent of the learned counsels for the parties the matter is being heard finally at the admission stage. The present appeal is filed against the order dt. 09.01.2013 passed by the Additional District & Sessions Judge, Dausa (hereinafter referred to as "the trial Court") in Civil Misc. Case No. 10/2009, whereby the trial Court has dismissed the application of the appellant -applicant -defendant filed under Order IX Rule 13 of CPC alongwith the application under Sec. 5 of the Limitation Act, for setting aside the ex -parte judgment & decree dt. 03.10.2008 passed in the Civil Suit being No. 17/2006 against the appellant.
(2.) IT appears that the respondents -plaintiffs had filed the suit against the appellant -defendant seeking recovery of Rs. 2,80,000/ -. In the said suit, summons were served on the appellant -defendant. According to the appellant, he had engaged one Advocate named Shri Sohan Lal Buchara, and on 11.07.2001, the said Advocate Shri Buchara had informed the appellant that the suit of the respondents was dismissed for default. The appellant, therefore, did not enquire further about the suit. However, the said Advocate subsequently expired and the ex -parte judgment & decree came to be passed against the appellant -defendant. The appellant on having come to know about the said decree, filed the application under Order IX Rule 13 for setting aside the same, alongwith the application under Sec. 5 of the Limitation Act. The said applications having been dismissed by the trial Court vide the impugned order, the present appeal has been filed. It has been submitted by the learned Senior Counsel Mr. J.K. Singhi for the appellant that the appellant was not aware about the impugned judgment & decree passed by the trial Court as his Advocate Shri Buchara had expired and he was not aware about his death. According to Mr. Singhi, the decree passed in the suit be set -aside in the interest of Justice on the condition that may be imposed by the Court. However, the learned counsel Dr. Vibhuti Bhusan Sharma for the respondents has submitted that there was nothing on record to suggest that the appellant had engaged any lawyer in the suit. According to him, as per the impugned decree passed by the trial Court, since the appellant -defendant had not filed his appearance, the suit proceedings had proceeded ex -parte against him and there being delay in filing the application under Order IX Rule 13, the trial Court has rightly dismissed the same.
(3.) HAVING regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial Court, it appears that the ex -parte decree came to be passed against the appellant -defendant, as none had filed any appearance on behalf of the appellant, though duly served. As rightly pointed out by the learned counsel for the respondents from the impugned order passed by the trial Court, the appellant -defendant had failed to prove that he had engaged the Advocate Mr. Buchara, who had expired later on. As such the contentions raised by the learned counsel for the appellant that the said Advocate had informed the appellant with regard to the dismissal of the suit of the respondents, and therefore he did not enquire further about the said suit, is not believable. If the said Advocate had informed the appellant about the dismissal of the suit, he would have filed his 'vakalatnama' on the record. However, no such 'vakalatnama' was found to have been filed by the appellant. Under the circumstances, the Court does not find any illegality or infirmity in the impugned order passed by the trial Court. However, looking to the nature of the dispute, and the submissions made by the learned counsel for the appellant that the appellant is ready to abide by the condition that may be imposed by the Court, the Court is of the opinion that the appellant -defendant is required to be granted one opportunity to defend his case. Hence, the impugned judgment & decree passed in the suit deserves to be set -aside subject to payment of cost and payment of part of the decreetal amount. In that view of the matter, the judgment & decree dt. 03.10.2008 passed by the Court in Civil Suit No. 17/2006 and the order dt. 09.01.2013 passed in Civil Misc. Case No. 10/09 are set -aside, on the condition that the appellant -defendant shall deposit Rs. 5,000/ - towards cost and Rs. 1,50,000/ - towards decreetal amount before the trial Court within a period of 8 weeks from today. The trial Court is directed to decide the suit being No. 17/2006 on merits and in accordance with law as expeditiously as possible. Both the parties shall remain present before the trial Court on 27.09.2013. Out of the amount which may be deposited by the appellant Rs. 5,000/ - be paid to the respondent towards the cost and the balance amount be invested in the F.D.R. for a period of five years which may be renewed from time to time by the trial Court till the pendency of the suit. The appeal stands allowed accordingly.;