Chattisgarh High Court
Madhya Pradesh Electricity Board ... vs Central India Electric Supply Co. Ltd on 11 March, 2025
1
2025:CGHC:12226
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Misc. Appeal No. 965 of 2002
1 - Madhya Pradesh Electricity Board Rampur Jabalpur Now Chhattisgarh
Power Distribution Company Limited Raipur.
... Appellant
versus
1 - Central India Electric Supply Co. Ltd. Torwa, Bilaspur (C.G.)
... Respondent
For Appellant : Mr. Brajendra Singh, Advocate
For Respondent : None present.
Hon'ble Mr. Justice Naresh Kumar Chandravanshi
Order on Board
11/03/2025
Earlier this case was pending before High Court of Madhya Pradesh,
Jabalpur, but vide order dated 8th December, 2022, this case has been
transferred from High Court of Madhya Pradesh, Jabalpur to High Court of
Chhattisgarh, Bilaspur.
1. Instant appeal has been preferred under Order 43 Rule (1) of the Code
of Civil Procedure, 1908 (henceforth, CPC) challenging the order dated
10.07.2002 passed by the Court of 12th Additional District Judge, Jabalpur in
M.J.C. No. 97/99, whereby an application under Order 9 Rule 13 of the CPC
filed by appellant/defendant for setting aside ex-parte judgment & decree
dated 06.12.1999 passed by 10th Upper District Judge, Jabalpur in Civil Suit
No. 15-B/95 has been rejected.
2. Facts of the case, in brief, are that Civil Suit bearing No. 15-B/95 was
filed by Central India Electric Supply Company Limited against Madhya
Pradesh Electricity Board, Rampur Jabalpur now Chhattishgarh Power
Distribution Company Limited, Raipur for recovery of Rs. 1,24,574.50/-
alongwith interest. In aforesaid civil suit, ex-parte proceedings was initiated
against the appellant / defendant on 27.11.1999, as on that date none
present on its behalf, thereafter, on the same day final argument was heard
and judgment was pronounced on 30.11.1999. On 23.12.1999,
appellant/defendant filed an application under Order 9 Rule 13 of the CPC for
setting aside ex-parte judgment & decree dated 6.12.1999, which was
dismissed by 12th Additional District Judge, Jabalpur in M.J.C. No. 97/99 vide
impugned order dated 10.07.2002.
3. Being aggrieved & dissatisfied with the same, instant misc. appeal has
been filed by the appellant/defendant challenging the same.
4. Learned counsel appearing for the appellant / defendant would submit
that prior to 27.11.1999, appellant/defendant was represented by its counsel.
On 27.11.1999, counsel could not appear, therefore, ex-parte proceeding
was initiated against the appellant / defendant and on the same day final
argument was heard and judgment was pronounced within a period of three
days only. He further submits that period of limitation for setting aside
ex-parte judgment & decree is 30 days and restoration application under
Order 9 Rule 13 of CPC was filed by appellant/defendant within a period of
17 days from the date of passing of ex-parte judgment & decree against it. As
such, aforesaid application was filed well within the prescribed period, despite
that learned trial Court dismissed the application under Order 9 Rule 13 of the
CPC observing therein that appellant/defendant could not have explained as
to his non-appearance on 27.11.1999. He submits that since restoration
application was filed well within limitation period, despite that learned trial
Court has dismissed the application under Order 9 Rule 13 of CPC without
any lawful ground. As such, it is prayed that impugned order dated
10.07.2002 may be set aside and Civil Suit No. 15-B/ 95 be restored to its
original number for hearing and disposal on its own merit in accordance with
law.
5. Despite issuance of various notices and even after publication of notice
in News Paper, neither respondent / plaintiff present nor represented by any
counsel.
6. I have heard learned counsel for the appellant and perused the
material available on record.
7. Perusal of original record of Civil Suit bearing No. 15-B/95 and MJC
Case No. 97/99 of the trial Court show that ex-parte proceeding was initiated
against the appellant/defendant on 27.11.1999, prior to that it was
represented by its counsel. Only because of non-appearance for one day i.e.
on 27.11.1999, ex-parte proceedings was conducted against it and on same
day, argument was heard and ex-parte judgment was rendered within three
days i.e. on 30.11.1999. Even appellant / defendant filed restoration
application under Order 9 Rule 13 of the CPC for setting aside ex-parte
judgment & decree dated 06.12.1999 passed by 10 th Upper District Judge,
Jabalpur in Civil Suit No. 15-B/95, but the same was rejected by learned trial
Court by recording a finding that it (appellant) could not explain that how it
came to know about fixing the case on 06.12.1999 after 27.11.1999. This
ground of rejection of application under Order 9 Rule 13 of CPC cannot be
held to be valid ground particularly when there is limitation period of 30 days
for setting aside ex-parte judgment & decree is prescribed in Article 123 of
the Indian Limitation Act, 1963, which reads thus :-
8. Article 123 of the Limitation Act, 1963 states as under: -
Description of suit Period of Time from which
limitation period begins to run
123. To set aside a decree passed Thirty The date of the
ex parte or to re-hear an days decree or where the
appeal decreed or heard ex summons, when the
parte. applicant had
knowledge of the
Explanation.- For the purpose decree
of this article, substituted
service under Rule 20 of
Order V of the Code of Civil
Procedure, 1908 (5 of 1908)
shall not be deemed to be due
service.
9. In the instant case, appellant has filed restoration application within 17
days from the date of passing of ex-parte judgment & decree. Thus, there is
justified ground in favour of appellant/defendant to get set aside ex-parte
judgment & decree dated 06.12.1999 passed by 10th Upper District Judge,
Jabalpur (M.P.) in Civil Suit No. 15-B/95.
10. In view of foregoing discussion, this misc. appeal filed by appellant /
defendant is allowed. Order dated 10.07.2002 passed by 12th Additional
District Judge, Jabalpur in M.J.C. No. 97/99 is set aside. Aforesaid application
under Order 9 Rule 13 of the CPC filed by appellant / defendant is allowed.
11. Consequently, ex-parte judgment & decree dated 06.12.1999 passed
by 10th Upper District Judge, Jabalpur in Civil Suit No. 15-B/95 is also set
aside. Principal District Judge, Bilaspur is directed to restore original Civil Suit
No. 15-B/95 (Central India Electric Supply Company Limited vs. Madhya
Pradesh Electricity Board, Rampur, Jabalpur Now Chhattisgarh State
Electricity Board, Raipur) in its original number. Since aforesaid civil suit is
very old one, therefore, Principal District Judge, Bilaspur (C.G.) may re-
number it as per rules.
12. After restoration of aforesaid civil suit, Principal District Judge, Bilaspur
(C.G.) is directed to issue notice to the parties, however, appellant is directed
to remain present before Principal District Judge, Bilaspur on 15th April, 2025.
13. Original records of Civil Suit No. 15-B/95 and M.J.C. No. 97/99 be sent
back forthwith to the Principal District Judge, Bilaspur (C.G.) alongwith copy
of this order.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Amit
AMIT by AMIT
KUMAR DUBEY
KUMAR Date:
DUBEY 2025.03.12
18:15:34 +0530
