1. Heard.
2. The present appeal is filed against the dismissal of an application filed under Order 9 Rule 13 CPC which was dismissed on 30.11.2017.
3. Learned counsel for the appellant would submit that the suit for specific performance was filed by the respondent, wherein the appellant was
appearing as defendant and ex-parte proceeding was drawn on 26.09.2016. Subsequently, on 04.10.2016 the statement of the witness of the plaintiff
were recorded and eventually the decree was passed on 07.10.2016. It is contended that immediately after the ex-parte judgment and decree dated
07.10.2016 they came to know on 14.10.2016, thereafter, the application under Order 9 Rule 13 CPC was moved on 19.10.2016. It is stated that on
04.10.2016 the brother of the defendant died, therefore, in order to take part in the rituals, the defendant though informed his counsel about the fact to
take adjournment, however, the counsel failed to discharge such duty and eventually the ex-parte decree was passed. It is contended that the delay
was not exorbitant and it was bonafide on the basis of record, therefore, one opportunity may be granted to the defendant to contest the case on
merits.
4. Learned counsel for the respondent/plaintiff opposes the same.
5. Perused the record of the Court below. Perusal of the record would show that on 26.09.2016, the ex-parte proceeding was drawn by the Court
below in the main Civil Suit No.32A/16 and the case was fixed for ex-parte evidence on 04.10.2016. On 04.10.2016 also the statements were filed
and the case was thereafter fixed for arguments and eventually the judgment and decree was passed on 07.10.2016. The record of the MJC No.14/16
which emanating from the application under Order 9 Rule 13, which was filed on 19.10.2016. In the contents of the application filed under Order 9
Rule 13 read with Section 151 CPC also the similar grounds have been stated that the brother of the defendant died on 04.10.2016 and it was
informed to the counsel, however, the counsel failed to inform the Court and get an adjournment on that ground. After going through the contents of
the application, it appears that though on 26.09.2016 the ex-parte proceeding was drawn, however, no statement was recorded and it was only on
04.10.2016 the statement of the witnesses were recorded, therefore, on that date when the case was fixed for evidence, the defendant had the right to
cross-examine the witness, for which it was fixed.
6. The reasons as has been assigned by the defendant appears to be genuine as in case of the death of the near and dear, it is a situation beyond the
control of any party and some sympathetic and practical view should be taken. Considering the same the reason as has been assigned by the appellant
appears to be genuine and no exorbitant delay appears on the face of the record as the ex-parte decree was drawn on 07.10.2016 and the application
for setting aside the ex-parte judgment and decree was moved on 19.10.2016. Under the circumstances, taking into the totality of the case, I am
inclined to allow this appeal. Accordingly, the application filed under Order 9 Rule 13 read with Section 151 CPC is allowed and the judgment and
decree passed in Civil Suit No.32A/2016 is set aside. The parties shall appear before the trial Court on 21st of January, 2019 and the trial Court shall
be obliged to proceed further from that date to adjudicate the case on merits.