1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. W.P.NO.417 OF 2009. Nilkanth Tulshiramji Bayaskar ..vs.. Rajendra Gokulprasad Sahu ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. ------------------------------------------------------------------------------------------------------------------------- Mr.S.W.Deshpande, Adv. for the petitioner. Coram : C.L.PANGARKAR, J. Dated : 14th JULY, 2009. 1. This writ petition challenges the orders passed by the courts below whereby an application under Order 9 Rule 13 of C.P.C. filed by the present petitioner/defendant was rejected. 2. The respondent had instituted a civil suit for recovery of rent. The petitioner appeared in the said suit but did not file the written statement. It is his contention that he later fell ill and could not contact the counsel and therefore written statement could not be filed and ex parte decree came to be passed. 2 3. After the decree was passed, he moved an application under Order 9 Rule 13 of C.P.C. The learned judge of the trial court found that there was no sufficient cause for setting aside the ex parte decree and therefore rejected the application. The appellate judge found that the application under Order 9 Rule 13 is not maintainable and there is no sufficient cause and dismissed the appeal. Hence, this writ petition. 4. I have heard the learned counsel for the petitioner. None appears for the respondent though notice for final disposal is served. 5. Learned counsel for the petitioner submits that the petitioner in fact wanted to contest the suit and he had even engaged a counsel. She submits that the fact that he has engaged the counsel itself goes to show that he has had every intention to contest the claim. She submits that it was the lawyer who did not properly instruct the petitioner that the written statement is required to be filed and later he had fallen ill. She submits that the petitioner has filed an affidavit that the lawyer did not instruct him properly and therefore there was a default. She also submits that the petitioner has a very good case on merit and if he is not allowed to contest, a serious prejudice and injustice would caused to him. 3 6. Considering the fact that the petitioner had in fact engaged the counsel and he later fell ill, the learned judge should have in fact granted an opportunity to the present petitioner/defendant to contest the suit. The intention of the defendant to contest the suit is very much clear from the fact that he had immediately engaged the lawyer but could not appear before the court due to illness. It is stated that the certificate was filed before the appellate court with regard to his illness. The appellate court should have taken into consideration that aspect. Normally the client should not suffer for the lapse on the part of the lawyer. Under such circumstances, it is desirable that the ex parte judgment and decreed is set aside and the petitioner is granted opportunity to defend. In view of this, the orders passed by both the courts below are set aside and ex parte decree passed is also set aside. The petitioner, however, shall pay the costs of Rs. 1500/- (Rupees fifteen hundred only) to the respondent within period of one month. On such condition, the ex parte decree is set aside. The writ petition is allowed. No order as to costs. JUDGE chute