VINEET KOTHARI,J. - (1.) The appellant/defendant has filed the present misc. appeal under Order 43 Rule 1(d) of the CPC, 1908, impugning the order dated 23.10.2013 passed by learned Additional District Juge No. 1, Bikaner, in Civil Misc. Application No. 128A/2012 - Sunderlal vs. Harikishan and Anr., whereby the learned court below has rejected the application filed by the appellant/defendant under Order 9 Rule 13 CPC and refused to set aside the judgment and decree dated 30.04.2012. The relevant findings of the learned court below while rejecting appellant's application is quoted herein below for ready reference:-- Learned counsel for the appellant/defendant submits that although the written-statement was filed on behalf of defendant, however, the appellant/defendant thereafter filed an application on 16.08.2011 before the District Legal Aid Committee seeking appropriate legal aid in the matter to contest the suit and the same was kept pending. The appellant was thus not aware fully of the court proceedings and was waiting for the decision to be taken providing him legal aid and in such circumstances he could not properly defend the case. He, therefore, argued the under Order 9 Rule 13 the court has ample power to grant such an opportunity to defend the suit while setting aside the decree, which was passed ex-parte against the appellant/defendant.
(2.) On the other hand, learned counsel for the respondent No. 1/plaintiff opposed these submissions and supported the impugned order and prayed for dismissal of the present appeal.
(3.) Having heard the learned counsel for the parties, this Court is of the opinion that in the facts and circumstances of the case, an opportunity to defend the suit deserves to be given to the appellant/defendant, subject to payment of reasonable cost, which is quantified at Rs. 2000/-, to be paid by the appellant/defendant to the respondent No. 1/plaintiff within a period of one month from today. Accordingly, the present misc. appeal filed by the appellant/defendant is allowed and the setting aside the judgment and decree dated 30.04.2012 and order dated 23.10.2013, the matter/suit is restored to the learned trial court at the stage when the ex-parte proceedings were ordered to be drawn against the appellant/defendant, subject to payment of cost of Rs. 2000/-, to be paid by the appellant to the respondent No. 1 within a period of one month from today. The learned trial court is requested to hold afresh the trial from the stage when the ex-parte proceedings were ordered against the appellant/defendant and expedite the trial. A copy of this order be sent to the concerned parties and the court below forthwith. Final Result : Allowed ;