- (1.) THE present writ petition has been filed by the petitioner aggrieved by the order dated 04.12.2002 passed by the Additional Civil Judge (Senior Division) No.2, Udaipur; whereby, its application under Order 9 Rule 13 CPC for setting aside ex parte decree dated 30.11.1996 was rejected and order dated 06.09.2008 passed by the Additional District Judge No.3, Udaipur; whereby, the order dated 04.12.2002 (supra) was upheld by the said court.
(2.) BRIEF facts of the case are that respondent-plaintiff M/s Agro Sales and Service filed a suit before the Court of Additional Civil Judge (Senior Division) No.2, Udaipur for recovery of a sum of Rs.9,731.00 against the petitioner-Bank and defendant Vela Ram inter alia with the averments that Vela Ram applied to the petitioner-Bank for purchase of Diesel Pump Set, for which, a loan of Rs.7,400.00 was sanctioned. After sanction as per the direction of the petitioner-Bank the Pump Set was supplied to the said defendant Vela Ram. Thereafter the petitioner-Bank was requested to make the payment of the said Pump Set. However, the said amount was not paid and, therefore, the plaintiff was entitled for a sum of Rs.7,400.00 alongwith interest. After service of summons on the defendants, on behalf of the petitioner-Bank counsel appeared before the Court. On 05.06.1993 the suit was transferred from the Court of Civil Judge, Udaipur to the Court of Civil Judge (Junior Division), Sarada. Notices of the said transfer was issued to parties. On service of notice another counsel appeared before the Court of Civil Judge (Junior Division), Sarda and the next date fixed in the matter was 21.02.1994. On 21.02.1994 the counsel did not appear and the suit was set ex parte against the petitioner-Bank. After setting the matter ex parte on 21.02.1994 again the matter was transferred to the Court of Civil Judge (Senior Division), Udaipur; however, no notice of the transfer was given to the parties. Again before the Court of Civil Judge, Udaipur appearance was put in by the Bank and thereafter again on 19.03.1996the matter was transferred to the Court of Civil Judge (Senior Division) No.2, Udaipur and ultimately the ex parte decree was passed on 30.11.1996.
(3.) THE petitioner-Bank coming to know of passing of the ex parte decree filed an application under Order 9 Rule 13 CPC for setting aside of the ex parte decree. It was inter alia submitted that the matters were transferred from one Court to another, information regarding which was never sent by the Court nor the counsel informed about the said transfer and, therefore, the petitioner-Bank was prevented by sufficient cause to appear before the Court. It was also claimed that even setting the suit ex parte against them was also not within their knowledge. The said application was opposed by the plaintiff inter alia on the ground that the conduct of the Bank has been absolutely negligent, inasmuch as, they had not even cared to seek setting aside of the ex parte order and, therefore, they are not entitled to seek any indulgence from the Court.;