[1] By this petition, the petitioners have challenged the order dated 06.09.2012 passed by the learned 11th Additional Senior Civil Judge, Bhavnagar below Exh.6 in Misc. Civil Application No.28 of 2010, by which the learned Judge has dismissed the application for condonation of delay in filing application under Order IX Rule 13 of CPC for setting aside exparte decree passed in Special Civil Suit No.245 of 1999.
[2] Respondent herein has filed suit before the learned Civil Judge (S.D.), Bhavnagar for recovery of an amount of Rs.31,23,374. 86 paise from the petitioners herein. As the factory was closed, petitioner herein left Bhavnagar, as he was native of Punjab. Notice was not personally served to the petitioner herein. As per the Court’s record, summons of the suit was served by affixing on the factory as well as on the premises where petitioner was residing. Thereafter, learned Trial Court has passed order to proceed exparte with the suit and ultimately suit was decreed in favour of the respondent herein.
[3] Learned advocate for the petitioner has relied on the judgment of the Hon’ble Supreme Court in the case of C.K.Lokesh v/s. P.E.Panduranga Naidu reported in (1996) 11 SCC 353.
[4] Considering the ratio laid down by the Hon’ble Supreme Court in the case of C.K.Lokesh (supra), in opinion of this Court, without deciding the matter on merits, the delay condonation application submitted by the petitioner herein before the learned Trial Court is required to be allowed by imposing suitable conditions.
[5] In view of above, the petition is allowed. The order dated order dated 06.09.2012 passed by the learned 11th Additional Senior Civil Judge, Bhavnagar below Exh.6 in Misc. Civil Application No.28 of 2010 is hereby quashed and set aside. The said application is allowed on condition that the petitioner herein shall deposit Rs.1 lac on or before 21.12.2012 with the learned Trial Court.
[6] Learned Trial Court to decide application filed under Order IX Rule 13 of the C.P.C. on or 28.12.2012 in accordance with law and without being influenced by the order passed by this Court today as well as order passed by the Trial Court below delay condonation application.
Rule is made absolute to the aforesaid extent.
Direct service is permitted today.
(M.D.SHAH, J.) satish