Priyanka Construction (Baroda) (P) Ltd. vs KLA Constructions Technologies P. Ltd.

V.K. Shali, J.—This appeal has been filed by the appellant against the order dated 25.5.2012 by virtue of which the learned Additional District Judge dismissed the application of the appellant under Order IX Rule 13 CPC for setting aside ex-parte decree passed against the appellant on 23.11.2010 and an application u/s 5 of the Limitation Act. I have heard the learned counsel for the appellant and have also gone through the impugned order. I do not find any infirmity, illegality or incorrectness in the finding recorded by the learned Additional District Judge so as to warrant interference by this court.

Briefly stated the facts of the case are that respondent M/s. KLA Constructions Technologies Pvt. Ltd. filed a suit for recovery of approximately Rs. 11 lacs against the appellant. The appellant, on being served, filed written statements and contested the matter stoutly. When the matter was at the stage of appellant/defendant''s evidence, it tried to dodge the court and delay the disposal of the suit. This is evident from the fact that the appellant had started examination of his defence by examining one DW-1. Thereafter, the appellant did not appear nor DW-1 was made available for the purpose of cross-examination by the respondent-plaintiff. Even counsel did not appear. With the result, the appellant-defendant was proceeded ex-parte by the trial court on 26.10.2010 and a judgment and decree was passed against the appellant on 23.11.2010. The respondent-decree holder had filed execution petition. It is at this stage that the appellant herein chose to put in appearance and filed an application under Order IX Rule 13 CPC on 20.3.2012. By this time, a year and a half had already passed from the date of decree.

In the application, the plea which was set up for setting aside ex-parte decree was that the counsel for the appellant had met with an accident and he was not able to attend the court on account of some personal problems. Along with the application seeking setting aside of the ex-parte decree, an application seeking condonation of delay was also filed wherein similar averments were made. But in neither of the two applications, the name of the counsel had been given nor the date of the accident, the medical record or the date when the counsel started going to court or for that matter, the date when he learnt about the ex-parte decree having been passed against the appellant-defendant has been given. It is also very strange that despite the fact that the counsel had chosen not to appear in the matter, the appellant, has taken no action against him either by removing him or making a complaint to the bar council or by sending him a letter of displeasure. These facts clearly show that this plea of the appellant is not bona fide and it is a cooked up story only for getting the ex-parte decree set aside.

The second submission which the learned counsel for the appellant made was that the then counsel did not keep the appellant-defendant informed about the progress in the case. It is stated that the counsel had intimated that as and when the case would arrive at the stage of evidence, the appellant will be informed and at that point of time he will appear. This is also a false plea inasmuch as the defendant had already filed an affidavit of DW-1 in its defence. So there was hardly any occasion for the learned counsel for the appellant to intimate that the case is yet to arrive at the stage of defendant''s/appellant''s evidence. This coupled with the fact that the name of the counsel has not been disclosed goes to show that this plea is also a false plea.

Another plea which is dealt with by the trial court is that the case was going on for compromise and the defendant/appellant had not been apprised of the case. In this regard also the trial court has noted that the mediation proceedings between the parties had failed in January, 2010, while as the appellant-defendant had appeared on 25.5.2010 as DW-1. Therefore, all these facts clearly show that the entire exercise of the appellant was to deprive the court an opportunity to decide the case expeditiously on merits. This endeavour of the appellant has failed on account of expeditious disposal of the case by the trial court by setting them ex-parte. I do not find any infirmity in the order passed by the trial court inasmuch as absolutely ''no sufficient cause'' has been shown by the appellant for allowing the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree or even for that matter for condoning the delay in filing the said application belatedly. Accordingly, both the applications were rightly dismissed by the trial court. This appeal does not have any merit and accordingly, the same is dismissed.