Darbara Singh vs M/s. Sunder Das Harbans Lal

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated March 24, 1987, whereby the application for the restoration of the application for setting aside the ex parte, decree was dismissed.

The Plaintiff obtained an ex parte decree against the Defendant-Petitioner Darbara Singh, on May 22, 1955. The application for setting aside the said ex parte decree filed by the Defendant which was dismissed for default of appearance on January 16, 1987. On the next day, i.e., on January 17, 1987, an application was filed for its restoration on the allegations that the Defendant was sitting outside the Court through out the day on January 16, 1957, but he could not listen to the call of the Court when the case was called for hearing According to him at about 4 P.M. on January 16, 1987, he told his counsel about his case having not been called and when the counsel sent his clerk to find out the fate of the case, the counsel for the Plaintiff told him that the case was fixed for the next day, i.e., January 17, 1987. Thus, the Defendant went away and it was on the next day i.e., January 17, 1987, that he came to know that the application for setting aside the ex parte decree had been dismissed for default of appearance on January 16, 1987. The said application was contested by the Plaintiff. The trial Court dismissed the said application primarily on the ground that no application for restoration of the petition under Order IX Rule 13, Code of Civil Procedure, (hereafter called the Code), was competent.

The learned Counsel for the Petitioner submitted that the view taken by the trial Court in this behalf was wholly illegal and wrong. There was no bar to maintain the application for restoration of the petition under Order IX Rule 13 of the Code. In support of the contention, the learned Counsel relied upon the Full Bench judgment of the Patna High Court in Bajrang Rai and Others Vs. Ismail Mian and Others,

After hearing the learned Counsel, I find merit in the contention.

There was no bar to maintaining of the application for restoration of the application as held by the Full Reach of the Patna High Court in Bajrang Rai''s case (supra), according to which under the scheme of the Code, where there is provision for appeal that does not necessarily bar other remedies for setting aside a decree. Therefore, provision for appeal against dismissal for default of an application under Order 9 Rule 9 or Rule 13 or under Order 43 could not be said to expressly or impliedly bar filing of an application under these rules, the reason being that in such cases, the party concerned without leading further evidence, will not be able to satisfy the Court that the order of dismissal for default of an application filed under Order 9 Rule 9 or Rule 13 should be set aside and the application restored. Provision for appeal in such cases will be illusory, as in view of the provisions of Order 41 Rule 27, the parties will not be entitled to lead any evidence before the appellate Court as a matter of right. In these circumstances, the impugned order is liable to be set aside.

Consequently, this revision succeeds and is allowed. The impugned order is set aside and the trial Court is directed to decide the application for setting aside the ex parte decree on merits in accordance with law. In the said application, the trial Court will be well advised to direct the Defendant to deposit the decretal amount as a condition precedent for setting aside the ex parte decree. In any case, if the trial Court finds that the parties should lead evidence in the case, both the parties will be given one opportunity to conclude its evidence at its own responsibility. The parties are directed to appear in the trial Court on April 1, 1989.