81i^s.!^y^.. HI6H COURT OF CHHATTIS6ARH. BILASPUR MISCELL4NEOUS AfVEAL N0.49 OF 2008 APPELLANT PLAINUFF Bilkish Be9um, aged 55 years, Wife of Mohammad Jafar Khan, Resident of Naj Manjil, Takiyapara, Our9 (C.6.) Versys RESPON&ENT DEFENDANT Sanjay Agarwal, S/o of Ramkisan Agarwal, Aged 41 yetu's,Residentof Santrobadj, Durg (C.6.) AWCAL UNDER ORDER 43 RULf 1 (d) CO&E OF CIVIL PROCEDURE. 1908 Present: Shri N.K. Chatt'erjee, counsel for •the appelltmt. Shri R.S. Portel, counsel lor the respondent. SB: HON-BLE SHRIJUSTtCE N.K. A6ARWAL ORAILOR&ER ( Passed on 18-08-20<») The instant appeal is directed against the order dcrted 17-03-2008 passed in MJC No.21/2007 byXU Additional District (i Judge,(F.T.C.), Durg wtiereby and whereunder the application filed by the oppetlant under Order 9 Rute 13 of C.P.C was rejected. 2. Brief facts of the case are that the req»ondentinstituted a case bearing registration No.l-A/2007 against the appelhnt seeking relief of specific performance of contract. On 06-08-2007, due to non-oppearance of the oppetlant, the trial Court proceeded ex-parte against her. On 24-08-2007, the application preferred by the appelldnt under Order 9 Rule 7 r«ad with Section 151 of C.P.C. wos dismissed by the trial Court- ond thereafter, the trial Court passed an ex-parte judgmerit and decree on 03-09-2007. Against that, opptication under Grder 9 Rule 13 was preferred on the ground that although the case was Y v fixed on 06-08-2007 but Ihe appellanfs advocate noted the date as 4th August, 2007 and on •that date, the Reader 9ave him c date of 24-08-2007 instead of 06-08-2007 and due to this, petitioner did not oppear on 06-08-2007 and pursuant to her non- appearance, the trial Courtproceeded ex-paris oyimst her. 3. The said application was dismissed by Itie Trial Court- on the ground that the appellant faited to assi9nsufficientcc»jseforher non-appearance on the date of hearing i.e. 06-08-2007 and dismissed •ttie application. 4. Shri N.K. Chatterjee, learned counsel for 1+ie appellant would submit that in fact the appellant had assigned sufficient cause for her non-appearance on 06-08-2007 but 1+ie leamed trial Court went wrong in holding otherwise and in rejecting the application under Order 9 Rule 13 of C.P.C. He woutd furtiier aibmit that it is not a case where it can be said •that appellont is grossly negligent and even if there some minor negtigence on the pfltf-t of the oppellant in prosecution of the case, the same can be compensated by awarding some cost. TTie Court shoyld be liberal in construing 'sufficient cause' for non-appearonce. 5. Per contra, Shri R.S. Patel, learned counsel fer respondent would submit that the appellant was grossly negligent in prosecytlon of her case and, therefore, the trial Court' has rightly passed the order and in any cose, if at all the e-f-^ffrte judgment and decree is required to be set aside, it should be set aside by imposing heavy costs on Ihe appellont and for this, reliance is placed upon •ttie decision of the Supreme Court- in case of Ms.Sahara india rf Ors. Vs. M.C. Aggarwal HUF reported in AIR 2007 SC 1261 in which a cost of Rs.20,000/- has been imposed. 6. I have heard learned counael for •ff)e parties cnd perused the record. 7. It is not in dtspu-te that the appeltant appeared in the case on 24-(%-2007 i.e. the date immediately after when •the case has been proceeded ex-parte against •the oppellant. The qapeltant also filed an application for sett-ing oside the ex-parte order which was rejected and therefore, there was no option left for the appellant but to wait for the ex-parte decree and thereafter, the flpplication has been preferred within time and in view of the fact situation of the instant case, cause shown by the appeltant for her absence on 06-08-2007 i.e. the date of hearing, the trial Court ought to have allowed tiie application filed by the appellant at the most upon imposing reasonable costs. 8. In view of the above, -the order passed by the trial Court deserves to be set aside subject to payment of costs of Rs.5,000/- to the respondent. 9. It is directed that the trial Court shall restore the suit to its original number ond proceed to decide the same from 1+ie stage when it was proceeded ex-parte, in accordance with law on itsown merits. Parties are directed to appear before the Trial Coyrt on 18-09-2009. Sd/- N.K. Agrawal Judge Kvr -f