1 2025:CGHC:12226 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 965 of 2002 1 - Madhya Pradesh Electricity Board Rampur Jabalpur Now Chhattisgarh Power Distribution Company Limited Raipur. ... Appellant versus 1 - Central India Electric Supply Co. Ltd. Torwa, Bilaspur (C.G.) ... Respondent For Appellant : Mr. Brajendra Singh, Advocate For Respondent : None present. Hon'ble Mr. Justice Naresh Kumar Chandravanshi Order on Board 11/03/2025 Earlier this case was pending before High Court of Madhya Pradesh, Jabalpur, but vide order dated 8th December, 2022, this case has been transferred from High Court of Madhya Pradesh, Jabalpur to High Court of Chhattisgarh, Bilaspur. 1. Instant appeal has been preferred under Order 43 Rule (1) of the Code of Civil Procedure, 1908 (henceforth, CPC) challenging the order dated 10.07.2002 passed by the Court of 12th Additional District Judge, Jabalpur in M.J.C. No. 97/99, whereby an application under Order 9 Rule 13 of the CPC filed by appellant/defendant for setting aside ex-parte judgment & decree 2 dated 06.12.1999 passed by 10th Upper District Judge, Jabalpur in Civil Suit No. 15-B/95 has been rejected. 2. Facts of the case, in brief, are that Civil Suit bearing No. 15-B/95 was filed by Central India Electric Supply Company Limited against Madhya Pradesh Electricity Board, Rampur Jabalpur now Chhattishgarh Power Distribution Company Limited, Raipur for recovery of Rs. 1,24,574.50/- alongwith interest. In aforesaid civil suit, ex-parte proceedings was initiated against the appellant / defendant on 27.11.1999, as on that date none present on its behalf, thereafter, on the same day final argument was heard and judgment was pronounced on 30.11.1999. On 23.12.1999, appellant/defendant filed an application under Order 9 Rule 13 of the CPC for setting aside ex-parte judgment & decree dated 6.12.1999, which was dismissed by 12th Additional District Judge, Jabalpur in M.J.C. No. 97/99 vide impugned order dated 10.07.2002. 3. Being aggrieved & dissatisfied with the same, instant misc. appeal has been filed by the appellant/defendant challenging the same. 4. Learned counsel appearing for the appellant / defendant would submit that prior to 27.11.1999, appellant/defendant was represented by its counsel. On 27.11.1999, counsel could not appear, therefore, ex-parte proceeding was initiated against the appellant / defendant and on the same day final argument was heard and judgment was pronounced within a period of three days only. He further submits that period of limitation for setting aside ex-parte judgment & decree is 30 days and restoration application under Order 9 Rule 13 of CPC was filed by appellant/defendant within a period of 17 days from the date of passing of ex-parte judgment & decree against it. As such, aforesaid application was filed well within the prescribed period, despite 3 that learned trial Court dismissed the application under Order 9 Rule 13 of the CPC observing therein that appellant/defendant could not have explained as to his non-appearance on 27.11.1999. He submits that since restoration application was filed well within limitation period, despite that learned trial Court has dismissed the application under Order 9 Rule 13 of CPC without any lawful ground. As such, it is prayed that impugned order dated 10.07.2002 may be set aside and Civil Suit No. 15-B/ 95 be restored to its original number for hearing and disposal on its own merit in accordance with law. 5. Despite issuance of various notices and even after publication of notice in News Paper, neither respondent / plaintiff present nor represented by any counsel. 6. I have heard learned counsel for the appellant and perused the material available on record. 7. Perusal of original record of Civil Suit bearing No. 15-B/95 and MJC Case No. 97/99 of the trial Court show that ex-parte proceeding was initiated against the appellant/defendant on 27.11.1999, prior to that it was represented by its counsel. Only because of non-appearance for one day i.e. on 27.11.1999, ex-parte proceedings was conducted against it and on same day, argument was heard and ex-parte judgment was rendered within three days i.e. on 30.11.1999. Even appellant / defendant filed restoration application under Order 9 Rule 13 of the CPC for setting aside ex-parte judgment & decree dated 06.12.1999 passed by 10th Upper District Judge, Jabalpur in Civil Suit No. 15-B/95, but the same was rejected by learned trial Court by recording a finding that it (appellant) could not explain that how it came to know about fixing the case on 06.12.1999 after 27.11.1999. This 4 ground of rejection of application under Order 9 Rule 13 of CPC cannot be held to be valid ground particularly when there is limitation period of 30 days for setting aside ex-parte judgment & decree is prescribed in Article 123 of the Indian Limitation Act, 1963, which reads thus :- 8. Article 123 of the Limitation Act, 1963 states as under: - Description of suit Period of limitation Time from which period begins to run 123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Explanation.- For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. Thirty days The date of the decree or where the summons, when the applicant had knowledge of the decree 9. In the instant case, appellant has filed restoration application within 17 days from the date of passing of ex-parte judgment & decree. Thus, there is justified ground in favour of appellant/defendant to get set aside ex-parte judgment & decree dated 06.12.1999 passed by 10th Upper District Judge, Jabalpur (M.P.) in Civil Suit No. 15-B/95. 10. In view of foregoing discussion, this misc. appeal filed by appellant / defendant is allowed. Order dated 10.07.2002 passed by 12th Additional District Judge, Jabalpur in M.J.C. No. 97/99 is set aside. Aforesaid application under Order 9 Rule 13 of the CPC filed by appellant / defendant is allowed. 11. Consequently, ex-parte judgment & decree dated 06.12.1999 passed by 10th Upper District Judge, Jabalpur in Civil Suit No. 15-B/95 is also set aside. Principal District Judge, Bilaspur is directed to restore original Civil Suit 5 No. 15-B/95 (Central India Electric Supply Company Limited vs. Madhya Pradesh Electricity Board, Rampur, Jabalpur Now Chhattisgarh State Electricity Board, Raipur) in its original number. Since aforesaid civil suit is very old one, therefore, Principal District Judge, Bilaspur (C.G.) may re- number it as per rules. 12. After restoration of aforesaid civil suit, Principal District Judge, Bilaspur (C.G.) is directed to issue notice to the parties, however, appellant is directed to remain present before Principal District Judge, Bilaspur on 15th April, 2025. 13. Original records of Civil Suit No. 15-B/95 and M.J.C. No. 97/99 be sent back forthwith to the Principal District Judge, Bilaspur (C.G.) alongwith copy of this order. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.03.12 18:15:34 +0530