JUDGMENT
N.G. Nandi, J.
(1) This is an application under Order Ix Rule 13 Civil Procedure Code by defendant No. 1, seeking to set aside the ex parte decree dated 2.11.92. Suit No.184/92 came to be filed against defendant No.1 (applicantherein)and defendant No. 2 M/s. Offset Printers Co., both of Kanpur, U.P. for the recovery of Rs. 2,85,294-63 paise. As revealed from the record, both the defendants, in the suit, were duly served but none appeared in the Court. By order dated 2.11.1992, decree came to be passed against both the defendants, for a sum of Rs. 2,25,600.00 with 18% interest on the said amount from 15daysafter21.3.1991 till the realisation and the costs of the suit. Thereafter, defendant No. 1 has come forward with this I.A. contending that the summons in the suit were served to defendant No. I on 25.2.1992 at its Kanpur Office; that some administrative changes were made by defendant No. I with regard to its northern region; that prior to the said administrative changes, the work of northern region was controlled by the regional office at Delhi and because of the administrative exigencies, a separate region was carved out and set up at Kanpur to look after all the cases, pertaining to Up region; that it was found at the regional office Kanpur that the files pertaining to the cases were not traceable and to trade out the files, efforts were made at Regional Office, Kanpur as well as branch office at Noida and the regional office at Delhi, however, during the said process, the said summons Along with copy of the plaint also got misplaced; that it was sometime during the second week of December, 1992 that the said Court summons and copy of the plaint were traced at Regional Office, Kanpur and the same were immediately sent to branch office at NOIDA; that the Counsel for defendant No. 1 was engaged for finding out the further proceedings in the case; that on inspection of the Court record, it transpired that none on behalf of defendant No. 1 had appeared in the Court, despite service, as such, defendant No. 1 had been proceeded against exparte vide order dated 22.7.1992 and thereafter, exparte decree on 2.11.1992 against defendant No. 1.
(2) The plaintiff by filing reply, resisted the prayer for setting aside the exparte decree dated 2.11.1992 passed against defendant No. 1, denying the administrative changes made by defendant No. 1 with regard to its northern region. It is also denied that efforts were made at the regional office at Kanpur and the branch office at Noida as well as at regional office at Delhi to trace out the file of this case. It is also denied that the plaintiff kept on avoiding defendant No. I so as to take advantage of the fact that defendant No.1 had been proceeded against exparte. It is also denied that in the second week of December, 1992, the said Court summons and copy of the plaint were traced outy at the regional office at Kanpur. It is submitted that defendant No. 1 took no steps in time, which, in law, he was required to do and at this belated stage, after the order passed by the Court, defendant No. 1 deserves no indulgence. In substance, it has been the say of defendant No. 1 that the application for setting aside the exparte decree is vague and that it was because of the negligence of defendant No. 1 that exparte decree came to be passed against the said defendant. Thus, it will be seen that the ground, on which exparte decree dated 2.11.92 is sought to be set aside, is the misplacement of the files relating to the case and also the summons served on defendant No. I and that the same could be traced out in the 2nd week of December, 1992.
(3) On defendant No. 1’s own say, the summons of the suit were served on 25.2.92 at its Kanpur office. The ground assigned is that because of the shifting of the regional office for the cases pertaining to Up region, from the Regional Office, Delhi, the files pertaining to this case got misplaced and during the process of finding the files of the case, the summons of the suit and copy of the plaint also got misplaced.
(4) The affidavit testified by one Mr. O.P. Sharma, Regional Manager, Nsic Ltd., Regional Office, Noida (UP) suggests that the administrative changes referred to in para 3 of this Ia were initiated in the year 1989-90 where a separate region for Up was carved out and the regional office at Kanpur was set up to look after the cases pertaining to Up region and that after the setting up of the said Up region, about two years time was taken in shifting and sorting out the files from Delhi office to various offices in Up region. Thus, according to the deponent, who is a regional Manager in defendant No. 1, in the year 1989-90 administrative changes were initiated and establishment of the regional office at Kanpur and the shifting and sorting out of the files from Delhi office to various offices in Up region, took about 2 years time. So in the year 1991-92, the entire process of shifting must have been over. The summons in the suit has been admittedly served at Kanpur Office of defendant No. 1 on 25.2.92, meaning thereby that the summons was served when the shifting process must have been practically over.
(5) It is pertinent to note that in para 4 all what has been said is that during the process of searching out the files, summons ana the copy of the plaint also got misplaced and that it was in the second week of December 1992 that the same were found out. It is pertinent to note that after 25.2.92, summons and copy of plaint were very much with defendant No. 1 and after receiving the summons, defendant No. 1 was busy tracing out the files of the case and in the mean time, the summons and copy of plaint also got lost. After the finding out of the summons and copy of plaint, defendant comes forward with this IA. If on finding out the summons and copy of plaint, if defendant No. 1 could engage a lawyer, then why after receiving the summons and copy of the plaint, defendant No. 1 did not engage Advocate, since it is not the say of defendant No. 1 in this Ia that the files of the case were also found out Along with the summons and copy of the plaint. In other words, apart from loss or no loss of the files, defendant No. 1 could have appeared in the suit after receipt of the summons on 25.2.92. The very filing of this Ia on the alleged finding out of the summons, is suggestive of the fact that the appearance of the defendant in the proceedings had nothing to do with the availability of the files and that defendant No. 1 could have, at least, appeared in the suit on the date fixed in the summons, i.e. on 13.3.1992. It appears that after receiving the summons and copy of the plaint, the defendant probably lost sight of the date of appearance in the suit and must have been reminded of the suit only in December, 1992. In my opinion, the nonavailability, if any, of the files, can not be connected with the non-appearance of defendant No. 1 in the suit on the day fixed i.e. on 13.3.92 and the non-availability, if any, of the files can not be regarded as sufficient cause for not appearing in the suit on 13.3.92, or on 22.7.92 when defendant No. I was ordered to be proceeded against ex parte and also on 2.11.92 when exparte decree came to be passed against the said defendant. Since defendant No. I could have appeared on 13.3.92 or atleast on 22.7.92 and requested the Court for time to file written statement on the ground of non-availability, if any, of the file, for drafting the written statement since the file would be required for instructions to the Counsel for drafting the written statement and not for filing appearance in the Court on 13.3.1992 and thereafter.
(6) Suffice it to say for the present purpose that defendant No. 1, in view of the aforesaid, can not be said to have been prevented by sufficient cause from appearing when the suit was called on tor hearing on 13.3.1992, or 22.7.92 and also 2.11.1992.
(7) In the result, the Ia being devoid of merits, fails. Ordered accordingly. fAdministrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar and Another.