Bank Of Madura Ltd. vs State Bank Of Patiala And Ors.
1993 Latest Caselaw 24 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated February 22, 1989 passed by Shri Padam Sirigh, Additional District Judge, Delhi whereby he has dismissed the application of the petitioner-defendant No. I filed under Order 9 Rule 7 read with Section 151 of the Code of Civil Procedure for setting aside the ex parte proceedings against Bank of Madura, defendant No.1., vide order dated ; 5.10.1988.

(2) According to the petitioner, the matter was listed before the trial court on 5.10.1988 for plaintiff's evidence. Counsel for the petitioner-defendant No.1 appeared before the Court in the morning but since the Court was on first half day's leave, the matter was .adjourned to after 2.00 P.M. The matter was thereafter taken up by the Court after 2.00 "P.M. but counsel for the petitioner could not put in appearance at the time of bearing as he was busy in some other Court. On the next date, i.e., 22.10.1988, when counsel for the petitioner appeared before the trial court, he learnt from the Reader of the trial court that expiate proceedings had already been ordered against the petitioner-defendant No.1 on 5.10.1988 itself as no appearance was put in on its behalf. On knowing this, the petitioner filed an application for setting aside the ex parte proceedings against him , which has been dismissed vide the impugned order on 22.2.1989. Being aggrieved against this order, the present revision petition has been filed.

(3) I have considered the matter. In my opinion sufficient cause has been shown by the petitioner-defendant No.1 for his non-appearance before the trial court on 5.10.1988. No doubt the Court has observed that it was not on leave on that date and there is a dispute about this fact, but the fact remains, which stands un-rebutted, that he was busy in the Court of Shri S.P. Saberwal, Additional District Judge, Delhi on 5.10.1988 when the case was called for hearing. Obviously there are so many courts and lawyers cannot be present in all the courts simultaneously. Since the counsel for the petitioner was busy in. some other court at the relevant time, that itself is sufficient cause for his non-appearance before the Court of Shri Padam Singh, Additional District Judge. Therefore, he has shown sufficient cause and the learned court should have allowed the application for setting aside the ex-parte proceedings. By failing to do so, the trial court has failed 'to exercise its jurisdiction vested in it under the law.

(4) The impugned order is, therefore, set aside.

(5) Revision petition is allowed subject to payment of Rs.200.00 as costs.