Suresh Kumar and Another vs Dileshwari Devi

Valmiki J. Mehta, J.—This appeal under Order XLIII CPC impugns the order of the trial court dated 4.10.2013 dismissing the application under Order IX Rule 13 CPC filed by the appellants/defendants. Since the impugned order is a short order, I reproduce the same as under:-

Case file taken up today on an application U/o. 9 Rule 13 CPC, filed on behalf of defendants for setting aside the judgment/decree dated 30.04.2013

Present: Shri Shailender Yadav, Ld. Proxy Counsel for the applicants/defendants.

Plaintiff in person.

I have heard the learned counsel for the applicants and perused the entire record. The applicants/defendants were duly served in the matter. The pleadings in the matter were completed. The witnesses of the plaintiffs were also cross-examined by the defendants, however, mysteriously the defendants stopped appearing in the matter. The sole reason which has been mentioned by the defendants for their non-appearance in court was an empty assurance by the plaintiff and she would withdraw the present suit and as such, the defendants did not appear in court. The aforesaid ground is not tenable in the eyes of law, particularly when the defendants had been contesting the case tooth and nail. I see no reasonable ground to set aside the judgment/decree dated 30.4.2013. The application being not bonafide is dismissed.

File be consigned to Record Room.

Application under Order IX Rule 13 CPC would be maintainable only on showing sufficient cause for non-appearance on the date fixed in a case like the present where the appellants/defendants were served, they had filed their pleadings, and evidence of the respondent-plaintiff was led in the case. The only reason given by the appellants/defendants is that they were given assurance by the respondent-plaintiff that the case would not be pursued by the respondent-plaintiff has rightly been disbelieved by the trial court because there is nothing to substantiate the same.

I may note that the appellants had already filed a regular first appeal impugning the judgment and decree, and that regular first appeal being RFA 566/2013 was unconditionally withdrawn on 16.12.2013. In view of the above, there is no reason for this Court to interfere against the impugned order dated 4.10.2013 by which application under Order IX Rule 13 CPC has been dismissed. The appeal is therefore dismissed, leaving the parties to bear their own costs.