Suresh Kumar & Anr vs Dileshwari Devi
2014 Latest Caselaw 62 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 4/2014& CM 55/2014(Stay)

%                                                           3rd January, 2014

SURESH KUMAR & ANR                                   ..... Appellants

                          Through:       Mr. P.K.Srivastava, Adv.

                          versus

DILESHWARI DEVI                                      ..... Respondent

                          Through

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This appeal under Order XLIII CPC impugns the order of the

trial court dated 4.10.2013 dismissing the application under Order IX Rule

13 CPC filed by the appellants/defendants. Since the impugned order is a

short order, I reproduce the same as under:-


             04.10.2013
                  Case file taken up today on an application U/o 9 Rule 13
             CPC, filed on behalf of defendants for setting aside the
             judgment/decree dated 30.04.2013
             Present:     Shri Shailender Yadav, Ld. Proxy Counsel for the
                          applicants/defendants.

FAO 4/2014                                                                Page 1 of 3
                          Plaintiff in person.
             I have heard the learned counsel for the applicants and perused
             the entire record. The applicants/defendants were duly served
             in the matter. The pleadings in the matter were completed. The
             witnesses of the plaintiffs were also cross-examined by the
             defendants, however, mysteriously the defendants stopped
             appearing in the matter. The sole reason which has been
             mentioned by the defendants for their non-appearance in court
             was an empty assurance by the plaintiff and she would
             withdraw the present suit and as such, the defendants did not
             appear in court. The aforesaid ground is not tenable in the eyes
             of law, particularly when the defendants had been contesting
             the case tooth and nail. I see no reasonable ground to set aside
             the judgment/decree dated 30.4.2013. The application being
             not bonafide is dismissed.
                   File be consigned to Record Room."


2.           Application under Order IX Rule 13 CPC would be

maintainable only on showing sufficient cause for non-appearance on the

date fixed in a case like the present where the appellants/defendants were

served, they had filed their pleadings, and evidence of the respondent-

plaintiff was led in the case.          The only reason given by the

appellants/defendants is that they were given assurance by the respondent-

plaintiff that the case would not be pursued by the respondent-plaintiff has

rightly been disbelieved by the trial court because there is nothing to

substantiate the same.



FAO 4/2014                                                                Page 2 of 3
 3.           I may note that the appellants had already filed a regular first

appeal impugning the judgment and decree, and that regular first appeal

being RFA 566/2013 was unconditionally withdrawn on 16.12.2013.

4.           In view of the above, there is no reason for this Court to

interfere against the impugned order dated 4.10.2013 by which application

under Order IX Rule 13 CPC has been dismissed. The appeal is therefore

dismissed, leaving the parties to bear their own costs.




JANUARY 03, 2014                              VALMIKI J. MEHTA, J.

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