R.S.CHAUHAN, J. - (1.) THE appellant -defendant has challenged the order dated 01.09.1999 passed by the Addl. District Judge No. 2, Jaipur city, Jaipur whereby the learned Judge had dismissed the application filed by the appellant under Order 9 Rule 13 of the Civil Procedure Code (henceforth to be referred to as 'the Code', for short).
(2.) THE brief facts of the case are that the respondent -plaintiff had filed a suit for recovery of Rs. 5,15,885.65 dated 23.11.1990 against the appellant - defendant. In the said suit the appellant alongwith Smt. Denu Boosar were arrayed as defendants. In the plaint, the address of the appellant was given as M/s.Kawasji and Sons, 114, Post Office Road, Mahu (M.P.). When the notice were issued by the trial Court, the notices were returned with a noting that "there is no such partnership firm existing at the said address." Subsequently, substituted service was permitted and a notice was published in a local newspaper on 04.05.1992. However, despite the publication of the said notice the appellant did not appear before the trial Court. Hence, vide judgment dated 24.07.1993 the suit was allowed in favour of the plaintiff - respondent. It was not till 1996 that the appellant came to know about the ex parte judgment and decree. It was only when the execution proceedings began in the Court at Mahu in M.P, in December, 1996 that the appellant came to know about the ex parte judgment and the execution proceedings. Immediately in January, 1997 she filed an application under Order 9 Rule 13. However, vide order dated 01.09.1999, the said application was dismissed. Hence, this appeal before this Court. Mr. Manu Bhargava, the learned counsel for the appellant, has contended that the appellant was a partner in M/s. Mount Abu Electric Supply Company. However, the said company was taken over by the State Government in 1975. Subsequently, the appellant had migrated to England where she is staying with her family. Since the appellant was residing in England, even after the publication of the notice in the local dailies at Mahu, she did not know that a civil suit is pending against her in the Court at Jaipur. Hence, the appellant has a sufficient reason for not attending the court. This aspect of the matter has been overlooked by the learned Judge. Instead he has presumed that merely because the appellant was visiting India, she must have been told by her relatives about the pendency of the civil suit. According to the learned counsel such a presumption is not legally warranted.
(3.) ON the other hand, Mr. G.C. Garg and Mr. Virendra Lodha, the learned counsel for the respondents, have vehemently argued that the appellant's nephew knew about the pendency of the case. Therefore, it can be reasonably deduced that the appellant knew about the said proceedings. Moreover, it is merely a delay tactic adopted by the appellant in order to wriggle out of her liability to pay a huge amount to the respondent.;