[2025:RJ-JP:19465-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil First Appeal No. 253/2023 1. M/s Shubam Enterprises Chopanki, Tijara, Tehsil Tijara, Alwar Through Proprietor Saroj Devi Chouhan. 2. Smt. Saroj Devi Chouhan, Aged About 64 Years, R-771, A-II, 1121, Harchandpur, Bhiwari, Tehsil Tijara, District Alwar, Rajasthan, Proprietor M/s. Shubam Enterprises. ----Appellants Versus M/s Firm Manohar Lal, Mitthan Lal, Having Registered Office Vilaspur Road, Opposite Girls School, Tijara, Tehsil Tijara, District Alwar Through Proprietor Kailash Gupta S/o Manohar Lal Gupta, R/o Ward No. 13, Dhumi Lal Ki Gali, Main Market, Tehsil Tijara, District Alwar, Rajasthan. ----Respondent Connected With D.B. Civil Miscellaneous Appeal No. 1396/2023 1. M/s Shubham Enterprises, Choupanki, Tijara, Tehsil Tijara, Alwar Through Porprietor Saroj Devi Chouhan. 2. Smt. Saroj Devi Chouhan, R/o Plot No. J-772, Near KG Plaza/ Sales Tax Office, RIICO Industrial Area, Phase-II, Bhiwadi, Rajasthan-301019. ----Appellants Versus M/s Firm Manohar Lal, Mitthan Lal Having Registered Office Vilaspur Road, Opposite Girls School, Tijara, Tehsil Tijara, District Alwar Through Proprietor Kailash Gupta S/o Manohar Lal Gupta, R/o Ward No. 13, Dhumi Lal Ki Gali, Main Market, Tehsil Tijara, District Alwar, Rajasthan. ----Respondent For Appellant(s) : Mr. Rakesh Kumar Ms. Priyanka Chouhan Mr. Abhimanyu Singh Bhati For Respondent(s) : Mr. Kapil Gupta with Mr. Ankit Kumar and Ms. Anisha Yadav HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE BHUWAN GOYAL Order [2025:RJ-JP:19465-DB] (2 of 4) [CFA-253/2023] 08/05/2025 1. These two inter-related appeals are decided by this common order as the facts and issues involved are similar and the parties are same. The appeals arise from the same suit. 2. D.B. Civil First Appeal No.253/2023 filed challenging the judgment and decree dated 25.02.2020 is accompanied by an application for condoning the delay of one thousand seventy eight days. D.B. Civil Miscellaneous Appeal No.1396/2023 is directed against dismissal of an application under Order 9 Rule 7 & 13 CPC. 3. The facts are being taken from D.B. Civil First Appeal No.253/2023. There were transaction between the parties with regard to supply of Mustard Seeds. The supply was made against eleven bills. The respondent-plaintiff (hereinafter referred to as “respondent”) filed a recovery suit. At the stage of hearing on 28.01.2020, the appellant-defendant (hereinafter referred to as “appellant”) was unrepresented before the Commercial Court and the matter was adjourned. Similar was the position on 07.02.2020 and thereafter on 10.02.2020, after hearing the arguments of counsel for the respondent, the matter was kept for final orders. On 25.02.2020 decree was passed in favour of the respondent. 4. The appellant filed an application under Order 9 Rule 7 & 13 CPC on 07.03.2020 pleading that counsel for the appellant had met with a car accident on 07.02.2020 and hence the appellant remained unrepresented. On 17.12.2020, the application was dismissed granting liberty to the appellant to file a fresh application under the appropriate statutory provisions. On 05.03.2021 the appellant moved a fresh application under Order 9 [2025:RJ-JP:19465-DB] (3 of 4) [CFA-253/2023] Rule 7 & 13 of CPC which was dismissed on 05.04.2023. Hence, these appeals. 5. Considering that these two appeals are inter-connected, the appellant was pursuing remedies by filing application under Order 9 Rule 7 & 13 of CPC and thereafter filed an appeal against dismissal of the application under Order 9 Rule 13 CPC, the delay in filing the appeal challenging the judgment and decree dated 25.02.2020 is condoned. 6. By an order dated 31.05.2023 passed in D.B. Civil First Appeal No.253/2023 as an interim measure, stay was granted subject to depositing the decretal amount with the Commercial Court, Alwar. The amount was to be released to the respondent on furnishing of solvent surety and giving an undertaking that in case appeal of the appellant is allowed, the amount shall be refunded along with interest @ 6% per annum. 7. The judgment and decree dated 25.02.2020 was passed without hearing the arguments of counsel for the appellant. The counsel for the appellant could not appear on 07.02.2020 and on 10.02.2020 as he met with an accident on 07.02.2020. 8. The Supreme Court in the case of Rafiq & Anr. Vs. Munshilal & Anr. reported in 1981 AIR 1400 held that the party should not be made to suffer because of conduct of the counsel. 9. There cannot be a quarrel with the proposition that the technicality when pitted with the substantial justice, latter shall prevail. 10. Another aspect to be considered is that the decretal amount has already been received by the respondent. [2025:RJ-JP:19465-DB] (4 of 4) [CFA-253/2023] 11. In the facts and circumstances of the case, without commenting upon merits of the case and to provide a reasonable opportunity to the appellant to argue the matter, the impugned judgment and decree is set aside and the matter is remitted back to the Commercial Court to proceed with the matter from the stage it was on 28.01.2020. 12. Considering that the transaction pertains to year 2015, the Commercial Court shall make a sincere endeavor to decide the matter within three months from the date of receipt of certified copy of this order. 13. In any case, no unwarranted adjournment shall be granted to either of the parties. 14. To avoid any further delay and complications, let the parties through their representatives appear before the Commercial Court concerned on 22.05.2025. 15. In view of the above, both the appeals are allowed. 16. It is clarified that the interim order dated 31.05.2023 shall remain effective during pendency of the suit. (BHUWAN GOYAL),J (AVNEESH JHINGAN),J Sudeepak/32-33