Alok Sharma, J. - (1.) THIS miscellaneous appeal under Order 43 Rule 1(d) CPC has been filed by the appellant -defendant -applicant (hereinafter 'the defendant') against the order dt. 19.1.2005 passed by District Judge Sawai Madhopur dismissing the application under Order 9 Rule 13 CPC for setting aside the ex -parte decree dt. 9.8.2002 in favour of the respondent -non -applicant -plaintiff (hereinafter 'the plaintiff') in a suit for eviction and recovery of rent. Heard learned counsel for the parties, and perused the impugned order dt. 19.1.2005 passed by the trial Court.
(2.) THE facts of the case are that the plaintiff filed a suit for eviction and recovery of rent before the trial Court. Notice on the suit was served on the defendant on 24.2.2001 to appear before the trial Court on 1.3.2001. Yet the defendant remained absent and did not appear before the trial Court on 1.3.2001, and even thereafter. On 27.3.2001 proceedings in the suit were made ex -parte against the defendant. Thereupon the trial Court appears to have taken the plaintiff's evidence, heard the plaintiff and the ex -parte decree was passed on 9.8.2002. It is also a fact the plaintiff for a while did not move any application for setting aside the ex -parte order dt. 27.3.2001 or the ex -parte decree dt. 9.8.2002. Petition for execution of the ex -parte decree dt. 9.8.2002 was filed by the plaintiff. Notices on the execution petition were issued and served on the defendant. The defendant deposited Rs. 10,000/ - for satisfying the decreetal amount on 28.8.2003. Thereafter, an application under Order 9 Rule 13 CPC came to be filed by the defendant on 18.9.2003. An application under Sec. 5 of the Limitation Act was also filed in accompaniment seeking to show "sufficient cause" for condonation of delay in belatedly filing the application under Order 9 Rule 13 CPC on 18.9.2003 against the exparte decree dt. 9.8.2002. The case of the defendant was that even though he received the summons in the suit on 24.2.2001, he fell seriously ill on 26.2.2001 and remained so till 15.3.2001. During the illness he lost the summons. On recovery from illness, he was taken by his mother to his village at Keral, where he stayed for about two and a half months. According to the defendant he came to know of the ex -parte decree dt. 9.8.2002 only on 9.9.2003 when he received the warrant for dispossession. It was further stated that the plaintiff had already taken an amount Rs. 11,400/ - and an amount of Rs. 10,000/ -deposited in the account of plaintiff on 9.8.2003.
(3.) THE application under Order 9 Rule 13 CPC was opposed by the plaintiff on various grounds.;