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TMI Blog2019 (7) TMI 2021X X X X Extracts X X X X X X X X Extracts X X X X ..... s period, and having appeared for the defendant on atleast two occasions before the Supreme Court, belie the stand taken by the defendant. It is also significant that, even during this period, an application was filed in March, 2016 for reopening the defendant's evidence, which had been closed in October, 2015. This application was filed by a pairokar of the defendant and shows that the defendant was in a position to participate in judicial proceedings even at that stage. This is a fit case for exercise of jurisdiction under Article 227 of the Constitution, against the order of the Trial Court invoking its powers under Order IX Rule 13 of the CPC. The impugned order is set aside - petition allowed. - Hon'ble Judges Prateek Jalan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was filed by Mr. Ashish Deep Verma, learned Advocate. It was stated that the defendant was in judicial custody in Jaipur Central Jail from 06.10.2015 to 06.05.2017, and that it was very difficult for counsel to communicate with the client, and to receive instructions from him. It was also averred that an application seeking production of warrants had not been ordered, by the reason whereof the defendant was unable to appear before the Court. The application was not accompanied by any application for condonation of delay. The application was resisted on behalf of the plaintiff inter alia on the ground of limitation, and with reference to the aforesaid course of proceedings, it was contented that the defendant had been granted sufficient o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof that the property of the defendant has been sold and the sale proceedings have been deposited in the executing court at Jaipur by the auction purchaser and judgment should be said aside as auction purchaser will suffer adversely. Therefore, I do not find force in the said contention. 11. Since technically on 04.11.2016 defendant was not proceeded ex parte hence in technical sense the judgment cannot be said as an ex parte judgment but actually this is an ex parte judgment as for all practical purpose defendant has been proceeded ex parte on 04.11.2016 when his DE was closed in his absence. Hence I consider the judgment dated 08.11.2016 as ex parte judgment. Therefore, in my view application U/o 9 Rule 13 CPC filed by the defendant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give instructions to his counsel on each and every date. Even the counsel also become lethargic as he might not be getting his fees therefore even proxy counsel was not appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice. 5. Learned counsel for the petitioner points out that the defendant's principal ground to the effect that he lost communication with his counsel is incorrect. He submits that the same learned counsel who had been appearing for the defendant in the course of the suit filed an application in December, 2016, for a certified copy of the decree. Further, copies of two orders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Trial Court, and that had taken the trouble of applying for a certified copy of the decree dated 08.11.2016, in December, 2016 itself shows that the defendant was adequately represented by counsel, even at that stage. The finding of the Trial Court that the defendant would have acquired knowledge of the decree only upon release from judicial custody on 06.05.2017 is also, therefore, erroneous and the consequent finding that the application under consideration was filed within time is also not sustainable. 7. On the merits as well, the Trial Court has been persuaded by the defendant's argument that the defendant and his counsel were not in communication when the defendant was in judicial custody. However, the facts regarding his hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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