\ D 29 ' % 02.08.2010 Present: Mr.Atma Ram Sharma, Adv. for the appellant Mr.J.S. Bhasin and Ms.Rashmi Priya, Advs. for respondent + RFA NO.353/2009 Present appeal is directed against the judgment and decree dated 02.02.2009. The brief facts of this case are that respondent - DTC had filed a suit for recovery of Rs.06,04,884/- against the appellant herein. Appellant was appointed as a crew driver with the ^ DTC on amonthlypay w.e.f. 01.05.1983. The appellantsubmitteda % leave application from 10.05.1989 to 30.05.1989 which was treated as leave without pay due to the reason that there was np leave to his credit. Thereafter, the appellant remained absent from duty w.e.f. 31.05.1989, without any intimation or information to the DTC. The DTC called upon the appellant to report for duty and in case of illness, he was requested to report before the Medical Board within 72 hours, failing which action would be taken in accordance with rules. The appellant did not report for duty nor reported to the Medical Board within the time allowed. After completion of three months, a show cause notice was duly served upon the appellant and thereafter, he was declared deemed to have resigned from his service of the corporation. The appellant filed a petition before the Industrial Tribunal, Delhi. The Labour Court passed an award in favour of the appellant by virtue of which he was entitled to reinstatement in job with continuity of service with 50% back wages. The DTC filed an appeal in the High Court, which was decided in favour of the driver. Consequent Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified thereto, the appellant filed an execution and recovered the amount. The DTC filed an LPA and thereafter it was finally decided by the Apex Court, that respondent be reinstated but without allowing his claim of back wages. Consequent to the order of the Supreme Court the DTC filed a suit for recovery against the appellant. The appellant did not appear in the trial court nor any written statement was filed. Accordingly, as the testimony of the plaintiff remained un-rebutted and unchallenged, the suit was decreed. It has been strongly urged by counsel for the appellant that nowhere in the order of the Supreme Court it has been stated that the back-wages, which already stood paid, were to be recovered from the appellant herein. He further submits that the appellant is a senior citizen and is not well- educated and could not appear before the trial court for cogent reasons and thus an ex parte decision has been taken in the matter. It is further submitted that the appellant has no source of livelihood and he has to look after his family besides his daughter who is of marriageable age. After some hearing in the matter, it is agreed that the judgment and decree may be set aside and 30 days time may be granted to the appellant to file the written statement, so as to contest the matter on merits, subject to the condition that appellant will deposit 50% of the suit amount with the respondent - DTC within three months. Accordingly, judgment and decree is set aside, subject to appellant's depositing 50% of the suit amount with respondent-DTC, within a period of three months from today. Appellant shall file his RFA NO.353/2009 2/3 written statement witliin thirty days from today. It is clarified that no extension of time will be granted to the appellant either to file the written statement or to deposit the 50% of the suit amount. In case written statement is not filed within thirty days from today or the amount is not deposited within three months it will be open for the respondents to execute the decree. Appeal stands disposed of in view of the stand taken by counsel for the parties. CM NOs. 14024/2009. 7524-25/2010 In view of order passed in the appeal, applications stand disposed of. G.S. SISTANI, J August 02, 2010 •ssn' RFA NO.353/2009 3/3