/ !r" IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH ^ c:y ^e'feart MISCELLANEOUS.APPEAL. N0. 2^ 12007 MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1 FD1 CODE OF CIVIL PROCEDURE 1908 APP^LLANT 'LAINTIFF ^ •-.! ^ . s ^". ^ '- ^^.^ ^^' -.'^ ]^'; >,»* >..- -^/ ./ !' :^' [f ~g^^eA ^6-1 RESPONDENT: 1, ^DEFENDANT ^m ^^ ^ ^"^atish Kumar Bhalla ' S/o Late Shri Jashwant Singh Bhalla, Aged about 52 years R/o Near Electricity Office, Tifra Teh. & Distt. Bilaspur [C.G.] VERSUS Ashok Kumar Bhalla S/o Late Jashwant Singh Bhalla Aged about 50 years R/o Gondpara Teh. & Distt. Bilaspur [C.G.] V5<;p^%", ^ SmtTriptaRani •^' ,,...-;^i:^'^^^ '^••'. ^3"^0'^ ,^-' y /A»7-^ ^ T47 <^/ D/o Late Shri Jashwant Singh Bhalla, V//o Shri Surya Kumar ^, ptf7 l^"^'^ '^ • y _^^ Bharyesh, Aged about 42 years, ^^^^•^/^ 2Z-ll-uf -^'"' ^ ^ R/0 Mandir Chowk Jarhabhata, ^e ' ^. <'L^c,5^ ^^ vf^^ ^^w ' Tah & Distt. Bilaspur [C.G.] ^^•11^7 ^ HIGH COURT OF CHHATTISGARH AT BILASPUR M!sc^A&pealNg,29of'2Q07 Appellant/ Defendaiit No. 1 Respondent/ Plaintiff Satish Ki.unar Bhalla VBRSUS Ashok Ki-unar Bhalla & ajiother (Misc. Appeal under Order 43 Rule 1(D) ofCPC) SBL Hpn'ble Shri Justice N. K. A^^rwal. Present : Shri Aviaash Mishra with Shri Vivek Shrivastava, Advocates for the appellaiit/owner. Shri Ashok Shukla, Advocate for respondent No, 1, None for respondent No. 2. ORAL ORDER 1. 2. (Passed oa 28.04.2011) Heaid. Instaat appeal is directed agaiast the order dated 18.04.2007, passed by fhe Ist Additional District Judge, Bilaspur, iu MJC Case No, 64/ 2006, whereby the petitioner's application for condonation ofdelay ia fiiling appUcation under Order 9 Riile 13 of CPC for settiag aside exparte decree has been rejected aad consequenfly appUcation under Order 9 Rule 13 was also dismissed. Brief facts of fhe case are : appellant engaged Shri JP Tiwari, Advocate, as his counsel ia fhe Civil Suit No. 40-A/04 fUed by respondent No. 1 ia the court of Vth Additional District Judge, BUaspur. During pendency of above suit, appellarit/s counsel died aiid thereafter court below directed for issuance of fresh notice to fhe appellaiit, however, no notice was issued to the appeUant. In between, junior's jiinior of late JP Tiwari, Shri •^^^s^ 6. Paadey appeared in fhe case aad sought tiine for informmg Shri C.L. Dhrmar, Advocate i.e. junior of late Shri JP Tiwari, Advocate. Later on, Shri Dhimar appeared in the case on 23.02.2005 and iatiinated the court fhat he is not in toiich wifh his client aad sought a week's tmie to intiniate tlie appellant. On fhe next date Shri Dhuaar did not appear and tiiereforc trial court proceeded exparte agaiast fhe appellant on 01.03.2005 aad thercal'ter passed exparte decree on 07.04.2005. Accordiag to appellaat, he also instituted a siiit bearing Civil Suit No. 247-A/04 on 16.09.2004 before the court of Civil Judge, Class II, BUaspur, ia which respondent appeared but did not disclose fhe fact that ia his suit the appellaat has been proceeded exparte aad it is only on 18.01.2006 when respondent filed aa applicatioii for dismissal of appellant's suit on fhe ground of passiag of fhe exparte decree in Civil Suit No. 40-A/04 in his favour, appellaat came to kaow about exparte decree, After gettiag knowledge of the decree, tJie appellant filed appUcation for setting aside exparte decree along with appUcation under Section 5 of Liniitation Act for condonation of delay ia filmg appUcation on 08.02.2006. The trial court disinissed the appUcation for condonation of delay aad consequently dismissed the application fitled under Oider 9 Rule 13 ofCPC. I have heard the counsel appeadng for the parties and penised the recoids ofMJC Case No. 64/06. Indisputably, the court below directed for issuance of fresh suniinons agaiast fhe appeUaiit aad fherefore the trial coiirt should not have proceeded exparte agabist the appellant !i/T^^ ~\ i^^ j %... 'st%F"'^; ~'^... w^' "^^^^•' without service of summons. Purther, it appears, due to death of his counsel Shri JP Tiwad, the appellaat was not aware about fhe proceediags in fhe suit aad after obtaining information on 18.01.2006 he immediately preferred application for settiag aside exparte decree. 8. Lookiag to overall facts aad circunistaiices of the case, in the considered opiaion of fhte court, the tdal coiirt should not have disxnissed the appUcation for settiag aside exparte decree as tinie barred as fhe reasons assigned in the application are plausible m fhe facts and circumstaaces ofthe case. 9. In view of above, delay occiirred in fUuig application for settmg aside exparte decree is condoned. Matter is remitted back to fhe tdal court for decidiag application for setting aside exparte decree on its own inerits ia accordaace wifh law. 10. Pardes are directed to appear before the trial court on 20.06.2011. 11. Records ofcourt below be sent back forfhwifh. 12. Appeal is accordmgly allowed. No order asto costs. Sd/- !. K. Agarwal Judge Sahu