Agro Feb vs Bank of India

N.K. Mody, J.

Appellant by Smt. Shobha Menon, Senior Advocate with Shri N. Pillai, Advocate.

Respondent No. 1 by Smt. Amrit Ruprah, Advocate.

Being aggrieved by the order dated 24-4-2000 passed in MJC No. 6/99, by VHIth Addl. District Judge, Bhopal, whereby the application filed under Order IXth Rule 13, CPC for setting aside the judgment and decree dated 12-3-1996 passed in Civil Suit No. 4-A/87 by IVth Addl. Judge to the Court of District Judge, Bhopal, has been dismissed, the present appeal has been filed.

Short facts of the case are that the respondent No. 1 filed a suit against the appellant and respondent No. 2 for realization of Rs. 2,26,602. 42 which was registered as Civil Suit No. 4A/87. In the aforesaid case appellant appeared and submitted his written statement. Later on, the case proceeded ex parte against the appellant w.e.f. 29-4-1994 as the appellant and his counsel remained absent. Thereafter, on 12-3-1996 the case was decreed ex-parte with a direction to pay a sum of Rs. 2,26,602.42 along with interest @ 12% p.a. On 16-12-1998, the appellant moved an application under Order IX, Rule 13, Civil Procedure Code, alleging that the appellant was not well right from the year 1994, therefore, he could not appear before the Court and the case proceeded in ex-parte. The application was supported by the affidavit along with medical certificates.

The learned trial Court dismissed the application on the ground that the application filed by the appellant is barred by limitation.

Learned Counsel for the appellant submits that since the application was filed within limitation from the date of knowledge of the ex parte judgment and decree therefore, there was no necessity to move an application for condonation of delay. Learned Counsel for the appellant submits that the learned Court below ought to have held enquiry before dismissing the application. Learned Counsel for the appellant has placed reliance on a decision reported in M.K. Prasad Vs. P. Arumogam, , wherein the Hon''ble Supreme Court has observed that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigating him as an irresponsible litigant. He should have been more vigilant but his failure to adopt extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. The inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs.

Smt. Amrit Ruprah, Learned Counsel appearing on behalf of respondent No. 1, has vehemently opposed the relief sought for by the appellant and submits that intentionally the application is filed by the appellant after an inordinate delay so that the decretal amount cannot be recovered. She further submits that it is a public money which is involved.

Considering the facts and circumstances of the case, and the law laid down by the Hon''ble Supreme Court, this appeal is allowed and the impugned order dated 24-4-2000 passed in M. J.C. No. 6/99 by VIIIth Addl. Judge to the Court of District Judge, Bhopal, is set aside, subject to the appellant depositing a sum of Rs. 25,000/- with the respondent No. 1 Bank within a period of one month and also pay a cost of Rs. 1000/- to the other side. After making compliance, the learned Court below shall dispose of the application after giving an opportunity to the appellant for filing an application for condonation of delay. Till disposal of the matter finally, the appellant shall maintain status-quo as regards to the property and shall not dispose of any property. M.J.C. No. 6/99 shall be disposed of within a period of 3 months and in case the learned Court below allows the application, then the civil suit No. 4A/87, shall also be disposed of finally within a year. Parties are directed to remain present before the Court below on 21-2-2005. No order as to costs.

C. C. as per rules.