Jamal Khan vs Ramratan Lahoti and Others

Pratap Krishna Lohra, J.—Appellant-defendant has laid this appeal under Order 43 Rule 1(d) Code of Civil Procedure, 1908 (for short, ''CPC'') challenging the impugned order dated 28th of January, 2014, whereby his application under Order 9 Rule 13 CPC as well as application under Section 5 of the Limitation Act is rejected by the learned Additional District Judge, Phalodi.

Appellant made endeavour before the learned Court below to set aside ex-parte judgment and decree dated 28th February, 2012 for recovery of a sum of Rs. 62,384/- by filing application under Order 9 Rule 13 CPC. As the application aforesaid was presented after expiry of one month, a separate application is also moved under Section 5 of the Limitation Act for condonation of delay. The learned Court below on consideration of both the applications has found that ex-parte proceedings were taken against the appellant on 2nd of November, 2010 after summons were duly served on him and thereafter ex-parte decree is passed on 28th February, 2012 and as such cause assigned for condonation of delay as well as for setting aside ex-parte judgment and decree are not convincing.

Learned counsel for the appellant, Mr. Purohit, submits that after service of summons, appellant entrusted brief to a lawyer but the lawyer has not put in appearance, and therefore, cause for non-appearance of the appellant ought to have been excused by the learned Court below. Mr. Purohit further submits that when the brief was entrusted and the counsel assured the appellant to take care about the case, for his lapses, appellant cannot be allowed to suffer. Lastly, Mr. Purohit would contend that sufficient cause under Section 5 of the Limitation Act is to be construed liberally, but the learned Court below has construed the same strictly without appreciating the factual background. With all these submissions, learned counsel has urged that impugned order is liable to be set aside.

Per contra, Mr. K.K. Bhati, learned counsel for the respondents submits that the application for setting aside ex-parte judgment and decree as well as condonation of delay are absolutely vague, cryptic and unspecific, and therefore, the learned Court below has rightly rejected both the applications. Mr. Bhati, learned counsel for the respondents, submits that the entire story about entrustment of brief to a lawyer is concocted inasmuch as lawyer has not put in appearance and there is no semblance of proof about entrustment of brief to the lawyer, which is clearly borne out from the impugned order, is sufficient to non-suit the appellant in this appeal. Lastly, learned counsel for the respondents submits that impugned order is just and proper, which calls for no interference in limited scope of judicial review of this appeal.

I have heard learned counsel for the parties and perused the impugned order.

Upon perusal of the impugned order, it is crystal clear that the learned Court below has examined the matter threadbare more particularly averments contained in both the applications. On close scrutiny of the impugned order, there remains no quarrel that appellant has miserably failed to prove entrustment of brief to a counsel for representing his cause.

It is an admitted fact that summons issued by the Court of the suit were duly served on the appellant and for more than a year nobody appeared on his behalf before the learned Court below. The learned Court below proceeded ex-parte against the appellant on 2nd of November, 2010 and finally decreed the suit ex-parte on 28th February, 2012 and during the interregnum, no endeavour was made by the appellant or his alleged counsel to appear in the matter. If the appellant has not cared to appear before the learned Court below to contest the matter for almost sixteen months, obviously the learned Court below has rightly proceeded ex-parte against him and decreed the suit ex-parte.

In want of any proof about entrustment of brief to the counsel concerned, the learned Court below has rightly turned down the request of the appellant for condonation of delay, which in my opinion, cannot be faulted.

True it is that in the matter of condonation of delay, the term ''sufficient cause'' envisaged under Section 5 of the Limitation Act is to be construed liberally but, at the same time, a litigant is not expected to be totally callous and negligent in contesting the matter. It is obligatory for the aggrieved party seeking condonation of delay to make out a case by furnishing sufficient cause with material particulars. In the instant case, the learned Court below has found that the cause assigned by the appellant for condonation of delay is not inspiring confidence and that being so it has rejected prayer for condonation of delay as well as application for setting aside ex-parte decree.

In my opinion, learned Court below has not committed any illegality in passing the impugned order and therefore the order impugned warrants no interference in exercise of appellate jurisdiction having limited scope of judicial review.

Resultantly, appeal fails and same is, accordingly, dismissed.