Hem Karan vs Ajit Singh

Alok Singh, J.—Learned Counsel for the Petitioner states that he has deposited Rs. 20,000/- in compliance of this Court''s order dated 15.9.2010.

Present petition is filed challenging the order dated 22.9.2008 passed by Civil Judge (Senior Division), Rewari, as well as order dated 22.9.2008 passed by Additional District Judge, Rewari, whereby the application moved by the Defendant/Petitioner under Order 9 Rule 13 CPC, was rejected.

Brief facts of the case are that Plaintiff/Respondent has filed a suit for recovery of the amount of Rs. 7,000/- along with interest on the basis of pronote. In the suit, the Defendant could not appear on the date fixed i.e. 3.10.2001 and case was directed to be proceeded ex parte against the Defendant. However, Defendant has moved an application to recall the order dated 3.10.2001 before the hearing of the suit was concluded. However, same was dismissed by the trial Court vide order dated 2.11.2001 and thereafter ex parte judgment and decree was passed against the Defendant on 3.11.2001.

Defendant thereafter moved an application under Order 9 Rule 13 CPC on 31.5.2003 for setting aside ex parte judgment and decree dated 3.11.2001 on the ground that on the date fixed i.e. 3.10.2001 when case was listed for Defendant''s evidence, Defendant had to go out of station to see his daughter at village Wazirabad, District Gurgaon since she was seriously ill. He further stated that due to the serious illness of the daughter, Defendant had no other option except to go to his village Wazirabad to see her, hence could not appear on the date fixed.

Both the Courts below did not find favour with the contentions raised by the Defendant for setting aside the ex parte judgment and decree and rejected the application moved by the Defendant.

Defendant/Petitioner instead of filing the application under Order 9 Rule 13 CPC has filed an appeal challenging the order dated 2.11.2001 dismissing his application under Order 9 Rule 7 CPC. The said appeal challenging the order dated 2.11.2001 came to be dismissed on 10.2.2003 having observed that appeal is not maintainable against the order passed on an application under Order 9 Rule 7 CPC application after the decree being passed in the suit. Although, appeal was dismissed on 10.2.2003, however, Defendant had not filed any application under Order 9 Rule 13 Code of CPC soon thereafter and filed present application on 31.5.2003. From the perusal of record, I do not find any sufficient ground explaining the delay as to why application under Order 9 Rule 13 CPC was not filed soon after the ex parte judgment and decree was passed and soon after the appeal was dismissed on 10.2.2003.

I do not find any reason to interfere with the impugned orders. Dismissed.