1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B. Civil Misc. Appeal No. 2884/2006 Suresh Gargi Versus M/s. Shakti Agencies 2. S.B. Civil Misc. Appeal No. 2883/2006 Sneh Gargi Versus M/s. Shakti Agencies Date of Order :: 14th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Anshuman Saxena for the appellants Mr. Raj Mal Jain for the respondent BY THE COURT: Admit. Mr. Raj Mal Jain, advocate appears for the respondent. 2. Heard learned counsel for the parties. 3. The common question of facts and law is involved in both the misc. appeals and appellants in both the cases are husband and wife and respondent is same in both the cases, therefore, they are being decided by this common order. 4. The plaintiff-respondent filed a suit for recovery of a sum of Rs. 2,04,820/- against defendant-appellant in misc. appeal no. 2 2884/2006 and for Rs. 2,91,021/- against defendant-appellant in civil misc. appeal no. 2883/2006. Summons were issued. The defendants entered their appearance through their advocate. An ex-parte order was passed against both of them in both the cases on 5th September, 2005 which was set-aside on an application filed on behalf of the defendants vide order dated 14th October, 2005. The case was fixed for filing written statement but the same was not filed and time was sought from time to time. Again neither defendants nor their counsel put their appearance in the court on 16th November, 2005 and in these circumstances the ex-parte proceedings were drawn against them. Both the suits proceeded ex-parte and ultimately an ex-parte decree was passed against the defendant-appellants by the trial court vide order dated 15th December, 2005. The defendants filed applications under Order 9 Rule 13 CPC in both the cases on 18th March, 2006 which have been dismissed by the trial court vide order dated 27th July, 2006 which is impugned in both the appeals preferred on behalf of the defendant. 5. Learned counsel for the appellants contended that defendants reside at Sri 3 Ganganagar and they engaged their counsel at Jaipur to contest the case. Their counsel did not inform them about passing of ex-parte order. It is further contended that wife of appellant Suresh Gargi, who is appellant in another case fell sick and in these circumstances they could not make themselves present in the court resulting in passing the ex-parte order against them. It is further contended that the non-appearance of the appellants was bonafide due to the circumstances as mentioned above, therefore, in the interest of justice, the delay be condoned in filing the application and the ex-parte decree be set-aside. It is further contended that so far as the delay of proceedings is concerned, the plaintiff-respondent may be compensated by way of awarding suitable amount of cost. 6. The learned counsel for the respondents opposed the appeal and contended that defendants deliberately did not appear in the court and their deliberate part is proved from the fact that on earlier occasion also the ex-parte proceedings were drawn in the case on 5th September, 2005 which was set-aside by the trial court itself vide order dated 14th 4 October, 2005. Again on 16th November, 2005 neither they nor their counsel appeared resulting in passing the ex-parte- order against them. They did not file any application for setting-aside the ex-parte order resulting in passing th ex-parte decree in the case and after a delay of about 3 months, the present application under Order 9 Rule 13 CPC has been filed in both the cases. He, therefore, contended that it is a case of gross negligence on the part of the defendants and if they want to show their bonafides, then at least they may be directed to deposit the decreetal amount which may not be paid to them and may be deposited in the fixed deposit during the pendency of the suit. 7. I have considered the submissions of learned counsel for both the parties and examined the impugned order passed by the trial court. The trial court has rejected the application under Order 9 Rule 13 CPC by observing that although it is correct that for the fault of an advocate the party should not suffer but that is not the position in the present case. The present matter was fixed for filing the written statement, but the same was not filed which could have been filed by party 5 in person only and not by the advocate. The so- called medical certificate in respect of Smt. Sneh Gargi is concerned, the same belongs to a period from 10th November, 2005 to 20th November, 2005 and again from 10th December, 2005 to 25th December, 2005. No explanation has been given for the period from 20th November, 2005 to 10th December, 2005 and for the period after 25th December, 2005. The trial court recorded a finding that the defendants have failed to explain the delay in filing the application under Order 9 Rule 13 CPC and the said explanation cannot be treated as sufficient in the facts and circumstances of the present case, therefore, the application under Section 5 of the Limitation Act as well as Order 9 Rule 13 CPC both have been dismissed. It is correct that defendant- appellants reside at Sri Gangangar and they engaged their counsel at Jaipur. The valuation of the suit in one case is Rs. 2,04,820/- and Rs. 2,91,021/- in another case. It is also correct that on earlier occasion an ex-parte order was passed which was set-aside by the trial court itself. However, looking to the facts and circumstances of the case, it will be just and proper in the interest of justice to 6 afford one more opportunity to the defendant- appellants to defend their suits in the trial court. So far as delay of proceedings is concerned, the plaintiff-respondent can be compensated by awarding heavy costs before allowing defendants to participate in the proceedings. 8. Consequently, both the appeals are allowed. The impugned order dated 27th July, 2006 in both the cases are set-aside. The applications filed by defendants under Section 5 of the Limitation Act as well as under Order 9 Rule 13 CPC, both, are allowed and the ex- parte decree dated 15th December, 2005 in both the cases are also set-aside. The defendants- appellants will pay Rs. 5000/- as cost in each case i.e. total Rs. 10,000/- in both the cases to the plaintiff-respondent or their counsel before the next date to be fixed by this Court for their appearance in the trial court, failing which the ex-parte decree will not be treated as having been set-aside by this Court. 9. Both the parties are directed to appear before the trial court on 28th August, 2008. Both the parties have been informed through their counsel also, therefore, the trial court will not issue any fresh notice to 7 the parties. 10. So far as these appeals are concerned, the parties are directed to bear their own costs. 11. Since aforesaid two appeals have been decided by this common order, therefore, a copy of this order may be placed in another file. (NARENDRA KUMAR JAIN),J. DK