The Traders Bank Ltd. vs Avtar Singh
1987 Latest Caselaw 229 Del

JUDGMENT

N.C. Kochhar, J.

(1) Facts giving rise to this application under Order 9 Rule 13 read with section 151 Civil Procedure Code the Code are as under : The Traders Bank Ltd. (the plaintiff) had filed a suit on 16th September 1982 for recovery of Rs. 1,11,085.00 against the applicant/defendant. It was alleged that the defendant had taken over draft facility and the above said amount was due to the plaintiff from the defendant on the date of the filing of the suit which the defendant failed to pay inspite of demands and notices.

(2) Notice of the suit was issued to the applicant defendant for 12th November, 1982. The notice was duly served and on 12th November, 1982 Shri Amarjit Singh, advocate appeared on behalf of the defendant before the Deputy Registrar and sought six week's time for filing the written statement and as such the case was adjourned to 14th January, 1983. On 14th January, 1983, the learned counsel for the defendant sought four weeks' further time for filing the written statement and the request was allowed. The case was adjourned to 10th March, 1983. Thereafter more opportunities were taken and the case ultimately came before Sultan Singh, J. on 9th November, 1983 and on that day again a request was made by the learned counsel for the defendant for further opportunity to file the written statement and last opportunity was granted to the defendant to file the written statement within four weeks subject to payment of Rs. 500.00 as cost. On 23rd January, 1984 the matter came up before the Deputy Registrar when the learned counsel for the parties appeared before him and when it was noticed that neither the written statement had been filed nor the cost had been paid by the defendant to the plaintiff and as such the case was laid before the court. The case came up before H. C. Goel, J. on 23rd February, 1984 when the parties' counsel appeared. Neither the written statement had been filed nor the cost had been paid and no explanation was furnished before the Court. The judgment was thus announced decreeing the suit of the plaintiff for the suit amount of Rs. 1,11,085.00 with cost and with pendente lite and future interest.

(3) This application was moved by the defendant/applicant on 24th September, 1985 stating that his son had not been keeping well and was in precarious condition and that he could not contact his counsel and that his son had recovered in March-April, 1985 and as such the applicant[defendant got temporary relief and since he had lost contact with his counsel he was not aware of the proceedings taken in court and that a week ago he had learnt about the passing of the decree. It has been stated that the above said decree is an ex parte decree and the same be set aside.

(4) Notice of the application was given to the plaintiff who has opposed the same on the grounds, inter alia, that the application is not maintainable.

(5) Following preliminary issue was framed be me on 18th February, 1987 :- "Whether the application is maintainable ?" I have heard Mr. Sri Gopal, counsel for the applicant/defendant, Mr. S. K. Luthra, counsel for the respondent/plaintiff and have also perused the records of the case.

(6) Rule 13 of Order 9 of the Code reads as under :- 13.Setting aside decree ex parte against defendant. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also ; (Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear ed answer the plaintiff's claim.) (Explanation-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has with-drawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.)" A bare reading of the above provision shows that before an ex parte decree can be set aside, the court must be satisfied that the defendant could not appear either because the summons had not been served on him or because he was prevented by sufficient cause from appearing in the court when the case was called for hearing. Unless either of these two conditions is satisfied, an ex parte decree passed against a defendant cannot be set aside.

(7) Under Order V of the Code, on receipt of summons a defendant may appear either in person or through counsel unless he is specifically directed to appear in person by the court. In the present case admittedly there was no direction to defendant to appear in person and he had been duly served and had put in appearance in court through his counsel Ch. Amarjit Singh, Advocate who had been appearing on behalf of the defendant before the court and had been seeking adjournments for filing the written statement but had failed to file the written statement and/or pay the cost without being able to assign any reason when request for adjournment had ben declined.

(8) An ex parte decree is one which is passed against a defendant who has not been able to place his case before the court due to non-appearance either because he was not serried with summons or because he could not appear before the court due to sufficient cause. A decree which is passed by the Court under Order 8 of the Code against the defendant who appears but fails or neglects to file his written statement within the time granted by the Court cannot be said to be an ex parts decree and cannot be set aside on an application moved under Rule 13 of Order 9 of the Code.

(9) In my view the decree in the present case is not an ex parte decree and the present application moved by the defendant for getting the same set aside is not maintainable. The issue is accordingly decided in favor of the plaintiff and against the defendant/applicant.

(10) In view of my above findings, I dismiss this application (1. A. 6165185) with costs which arc assessed at Rs. 200.00 , 1. A. 6165 of 1985 stands disposed of.