A Square Systems vs Maharashtra Plastic And Industries

Alok Singh, J

1) By means of present Appeal from Order (A.O.), appellant seeks to quash the order dated 21.4.2018 passed by the Civil Judge (S.D.), Roorkee, District Haridwar in Misc. Case No.48/2017 (computer filing No.124/2017) in Suit No.166/2010 and to allow the application under Section 5 of the Limitation Act as well as application under Order 9 Rule 13 Code of Civil Procedure filed by the appellant / defendant.

2) The facts of the case in a nutshell are that the plaintiff (respondent herein) filed a suit for recovery of amount against the defendant claiming that the plaintiff had sold some plastic products to the defendant through several invoices for a total amount of Rs.5,08,636/-, but the defendant failed to pay the said amount of sale consideration to the plaintiff. The said suit was filed in the year 2010 being O.S. No.166 of 2010. The defendant appeared to file her written statement and on the basis of the pleadings of the parties, the court below framed necessary issues.

3) However, the suit preceded ex-parte against the defendant, vide order date 17.10.2013, in as much as, the defendant on account of malafide intention had chosen not to appear in the suit. Thereafter, the plaintiff had filed the oral and documentary evidence in support of the claim. The learned trial court, after considering the pleadings and material available on record, decreed the suit, vide its judgment and decree dated 13.07.2015 directing the defendant to make payment of Rs.8,61,465/-. The plaintiff filed an execution case seeking execution of the said decree dated 13.07.2015. Then, the defendant appeared and filed an application under Order 9 Rule CPC alongwith application Section 5 of the Limitation Act for condonation of delay in filing the restoration application in the month of October, 2017, i.e., after two years of passing of the decree dated 13.07.2015.

4) A bare perusal of the restoration application filed by the defendant reveals that the application has been filed, inter-alia, on the merits of the case and the aforesaid decree dated 13.07.2015 could have been assailed in regular civil appeal. The grounds alleged in the restoration application are not sufficient for setting aside an ex-parte decree, in as much as, the defendant is duty bound to prove sufficient cause for non appearance in the suit. So far as the delay is concerned, the defendant has only stated that she is the resident of Noida, Uttar Pradesh and she was completely unaware of the happenings/developments in the case and was under the impression that her counsel would keep her informed of any developments. Perusal of the record reveals that the suit was filed in the year 2010, then it proceeded ex-parte in the year 2013 and, eventually, it was decreed in the year 2015. The application for condonation of delay was filed in the year 2017, after about 2 years of passing the decree. This Court is of the considered opinion that no sufficient cause had been made out for condonation of delay and, moreover, the restoration application was filed basically on the merits of the case. In para 22 of the application filed by the defendant under Order 9 Rule 13 CPC, it has been stated, inter alia, that at the time of filing of written statement, the defendant failed to mention the fact of payment made by way of bank draft to the plaintiff as she forgot the said fact due to passage of time. The said fact in any case cannot be a ground for setting aside an ex-parte decree.

5) In view of above, the Appeal from Order is liable to be dismissed and is hereby dismissed. No order as to costs.