This petition under Article 227 sought to challenge ex-parte order and appeal dismissal order. Petitioner claimed absence was due to business reasons. High Court found explanation untrustworthy and dismissed petition.
Application and appeal dismissed; ex-parte order upheld.
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Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 6682 of 2019
Petitioner :- Rajendra Rai Respondent :- Vijay Bahadur Rai And Another Counsel for Petitioner :- Sanjay Kumar Rai
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the ex-parte judgment and decree dated 1.3.1997 passed in Original Suit No. 410 of 1991, order dated 9.10.2015 rejecting the application filed by the petitioner under Order 9 Rule 13 (registered as Misc. Case No. 105 of 1997) as well as the order of the Appellate Court dated 31.7.2019 dismissing the appeal.
The facts in brief are that the petitioner, who was defendant in the suit, after service of summons, duly entered appearance and is admitted to have filed his written statement. Subsequently, he absented himself from the proceedings, as a result whereof, the trial court was compelled to pass an order on 15.11.1996 for proceeding ex-parte against him. The petitioner did not appear even thereafter. The suit was ultimately decreed ex-parte on 1.3.1997. The petitioner filed an application under Order 9 Rule 13 C.P.C. on 31.5.1997 stating that he had gone out in connection with his business reposing confidence in his counsel that he will take care of his case. However, an exparte decree came to be passed against him and the same deserves to be recalled.
The trial court in its order dated 9.10.2015, while rejecting the application, held that the explanation given by the
petitioner is not trustworthy. He has not given the date on which he left the city in connection with his business and when he returned back. The court has also observed that since the petitioner had full knowledge of the institution of the suit and thereafter, deliberately absented himself without any justifiable reason, thus, no ground is made out to allow the application under Order 9 Rule 13 C.P.C. The Appellate Court has observed that there is no ground to condone the delay in filing application under Order 9 Rule 13 C.P.C. much less any sufficient reason for remaining absent from the court proceedings on the date the suit proceeded ex-parte or on the subsequent dates.
Counsel for the petitioner is unable to show any jurisdictional error and illegality or perversity in the findings recorded in this regard by the courts below.
In such view of the matter, no ground is made out to interfere with the impugned orders in exercise of supervisory power under Article 227 of the Constitution.
The petition lacks merits and is dismissed.
(Manoj Kumar Gupta,J.)
Order Date :- 14.10.2019 Chandan
3 issues framed by the court
Whether the High Court can interfere under Article 227 with the dismissal of an appeal and rejection of an Order 9 Rule 13 application.
Whether the courts below committed jurisdictional error or acted perversely in finding that the petitioner deliberately absented himself.
Whether the petitioner is entitled to recall of the ex-parte decree.
3 provisions across 3 enactments
Rajendra Rai
Vijay Bahadur Rai
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
