I3S r«EHIGH COURT OF JUDiCATURB AT BILASPXJR MI3C. APPBAL NO._____.3xl'^L—aT'2005 AP?ELLA!ST: [Appllcants / ^Defen.dants') ~ b^. ^^ ^e^ ^ vs [Mon-appIiGants Tf Plamuffs) / 1. A.F.L. La Jistics Ltd.. A.F.L. House, Lols Bharti Complex, Marle Marusi Road, Andfaeri(E), Mumbai, through its Manager. 2. Sunil Agarwai, A.F.L. La •Jistics Ltd, Ring Roaa No.l, Telibaadha, Raipur Tehsil & District Raiour. 3. Kishore Dhirke, Regional ^"" . Manager, A.F.L. La Jistics Ltd., 328 Tawakkal Lav- out, Near Sheela Complex, Kardi, Sagpur Maharashtra) Krishna Cheinicals, Krishna Kunj, Vidh;ya Nagar, lilaspur (Chhattisgarh), through its Power of Attorn.cy holder Shri Arjunlal Agarwal, son of Late Niranjanlai Agarwal, resident of Vidhya Nagar, Bilaspur (Chhattisgarh). Natlon.al Insurance Conipany Liniitcd, rcgistercd office-3, Middleron Street, P.0 BagNo.9229, Koikata (W.B.) APPEAL UNDBR ORDER 43 RULE l?d) OF TH@ COD1B OF f;T mCH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Misc. Appeal No. 342/2005 APPELLANTS : A.F.L. La Jistics Ltd. & others RESPONDENTS : VersiK Krishna Chemicals & anoflier Appearance: Miss. Shamula Singhai, counsel for the appellants. Miss.MomshaChattri, counselfor respondent No. 1. ShriG.V.K. Rao, counsel for respondmtNo.2. ORAL ORDER (6.07.2010) This appeal is directed against the impugned order dated 7/02/05, whereby the trial court has dismissed appellant's applicatioa under Order 9 Rule 13 ofCPC for setting aside ex-parte decree dated 18/08/04. (2) The plaintiflD'respondent No.l preferred suit for recovery of damages ofRs.65539.37/-. (3) On 7/08/04, Ae suit was fixed for recording defendant's evidence. However, neither the counsel appeared nor the defendants or their witnesses were present at tiie time when the matter was called on for hearing before trial court. The trial court therefore proceeded ex-parte against the defendants/appellants and ultimately passed ex-parte decree on 18/08/04. (4) In their appUcation under Order 9 Rule 13 of CPC; ;the defendants submitted afBdavit ofthe counsel, who had fiillen ill^on ''"•''•^asf'.'i -2 the date of hearing and could not infonn the defendante about his ilhiess. Leamed court below has held that Ifae reason assigned for non-appearance ofthe counsel or the parties on the date of hearing is neither sufGcient nor bonafide and therefore no case for setting aside ex-parte decree is made out. (5) Having heard leamed counsel for the parties, this court is satisfied that the appellants have sufficiently explained their absence on the date ofhearing before the trial eourt. In the record ofthe trial court the afBdavit of the counsel engaged by Ifae defendants is available. The counsel has clearly stated on oath that he could not appear on the date of hearing nor could he inform the appellants/defendants about his Ulness on 7/08/04 and that this actof his was bonafide. The respondeat No.l/ plaintifif has not filed any afiGdavit in support of its reply to the applicant's application for setting aside the ex-parte decree. (6) Hon'ble Supreme Court in the matter of G.P. Srivastava Vs. R.K. Raizada and others 3 8CC 54 has held that fte expression 'prevented by a sufiGcient cause' occurring in Order 9 Rule 13 must be liberally construed where defence is reasonable and the defendant approaches court for setting aside ex-parte and where the non-appearance is not malafide or intentional. In the instant case, default in appearance on the date ofhearing had laken place because ofthe mistake ofthe counsel as the counsel was not well on the date -.. -na-t-»6»l^= .^'^ f .f' "" !!M V. 1-1 y-/ ^' of heaiing, and it was his mistake that he eould not infonn the appellants about his iltoess. Troe it is that the matter was fixed for reeording ofeyidence and the defaidant was also required to remain present personally cn the date of hearing, but since the counsel has subnntted an affidavit that he eould not infonn the appellants on the date of hearing, the default ia appearance by the appeUants is also SatisfactBrily explained. In view of the law laid down by Supreme Court in case of G.P. Srivastava Vs. R.K. Raizada and ottiers (supra) Ais court is satisfied that the appeMants have been able to satisfactorily explain that they were prevented by suflBcient cause when they remained absent on fte date ofhearing before trial court. (7) As a result, this appeal succeeds and is therefore allowed. Impugned order is set asade. The appellants shall be entided to withdraw the amount of Rs.25,000/- which tiiey faave deposited before trial court in compliance oftfae interim order passed by tius courton 18/03/05. (8) Record offhe trial coiut be sent back. (9) There shall be no order as to cost. Sdl- ...... ^ prashantKumarMishra ^ judge T