// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.7610/2003 Nand Kishore S/o Bhanwar Lal ...Petitioner Versus The Civil Judge (Sr.Div.) No.3 (South), Kota and Others ...Respondent Date of Order ::: 12.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Neeraj K. Tewari, Counsel for petitioners Shri Mahendra Singh, Advocate, for Smt. Kamla Jain, Counsel for respondents No.2 #### By the Court:- Heard learned counsel for the parties. Plaintiff-respondent No.2 Radhey Shyam S/o Shri Ram Kalyan filed a suit for permanent injunction in respect of the disputed property in the trial court, which was fixed on 16th May, 2002. On that date the reply of the defendant was closed and thereafter the suit was fixed for 28th May, 2002. No one was present on behalf of the defendant, therefore, ex-parte order was passed against the defendant. Thereafter, the defendant filed an application on 8th July, 2002 under Order 9 Rule 7 of the Code of Civil Procedure for setting-aside the ex-parte order contending therein that on 16th May, 2002 the defendant noted the next date as 29th May, 2002 in place of 28th May, 2002, therefore, he could not make himself present and his absence was bona-fide, therefore, ex-parte order may be set-aside. The application was contested by the plaintiff by filing a written reply wherein it was contended that the application filed by the defendant is not bona-fide and the defence taken by him is apparently false. He contended that in case the defendant had noted the next date as 29.05.2002 then why he waited up-to 8th July, 2002 for filing the application, therefore, the // 2 // application is liable to be dismissed. The learned trial court, after considering the submissions of learned counsel for both the parties dismissed the application of the defendant vide order dated 9th July, 2003, which is under challenge in the present writ petition filed under Article 227 of the Constitution of India. The learned counsel for the defendant-petitioner contended that on 16th May, 2002 the counsel for the defendant noted the next date in the case as 29.05.2002, therefore, he could not make himself present in the trial court on 28.05.2002 resulting in passing ex-parte order and immediately thereafter on the next date i.e. 08.07.2002 when he came to know about it, he moved an application in the trial court for setting-aside the ex- parte order, therefore, in the interest of justice, the application ought to have been allowed and the trial court has committed an illegality in passing the impugned order whereby the application filed by the petitioner for setting-aside the ex-parte order has been rejected. The learned counsel for the plaintiff-respondent contended that the application filed by the defendant under Order 9 Rule 7 of the CPC was not bona-fide. He contended that in case on 16.05.2002 the defendant had noted the next date as 29.05.2002 in place of 28.05.2002 then why was the application not filed on 29.05.2002 itself for setting-aside the ex-parte order dated 28.05.2002, therefore, the trial court was fully justified in rejecting the application of the petitioner. He, therefore, contended that there is no merit in this writ petition and the same is liable to be dismissed. A notice to show-cause was given to the respondents way back on 21.04.2004. The notice of plaintiff-respondent No.2 was served in September, 2004, but till date reply to the writ petition has not been filed by him. I have considered the submissions of learned counsel for both the parties and also examined the impugned order dated 09.07.2002 (Annexure-5) passed by the trial court. // 3 // The plaintiff-respondent filed a civil suit for permanent injunction, which was fixed on 16th May, 2002 and on that day filing of written-statement of the defendant was closed and case was fixed for 28.05.2002 and on that day the defendant was not present, therefore, the trial court passed an ex-parte order against the defendant. From the order dated 09.07.2002 it appears that the defendant has delayed the proceedings of the trial court initially by not filing written-statement during the period from 04.10.2001 to 16.05.2002. Thereafter he did not appear on 28.05.2002 resulting in passing of ex-parte order. However, the learned trial court mainly rejected the application of the defendant on the ground that when the defendant had noted the next date in the case as 29.05.2002, then the application ought to have been filed on that date itself instead of waiting till the next date i.e. 08.07.2002. Normally, the counsel in trial court moves an application on the date fixed by the trial court and in the present case the matter was fixed on 08.07.2002 after 28.05.2002 and on that date the application was filed, therefore, in my view, there was nothing wrong in filing the application for setting-aside the ex-parte order on 08.07.2002 and the trial court committed an illegality in not allowing the application. Such application ought to have been allowed by the learned trial court in the interest of justice. So far as the delay tactics adopted by the defendant in the present case is concerned, the trial court could have awarded costs by way of compensation in favour of the plaintiff. In these circumstances, I am of the view that the impugned order is liable to be set aside and the application filed by the defendant-petitioner for setting-aside the ex-parte order is liable to be allowed with costs. Consequently, the writ petition is allowed. The impugned order dated 09.07.2002 passed by the Civil Judge (Senior Division) No.3 (South), Kota, rejecting the application of the defendant under Order 9 Rule 7 of the CPC is set-aside. The ex-parte order dated 28.05.2002 is also set-aside. The defendant is permitted to participate // 4 // in the proceedings in the trial court. However, the defendant will pay a sum of Rs.3,000/- (Rupees three thousand) towards costs to the plaintiff. The petitioner is allowed one month's time to pay the costs to the plaintiff, failing which the impugned order dated 09.07.2002 passed by the trial court shall remain in force and the defendant will not be allowed to participate in the proceedings. Both the parties are directed to appear before the trial court on the next date fixed in the case. There will be no order as to costs so far as this writ petition is concerned. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.6344/2003 In S.B. Civil Writ Petition No.7610/2003 Nand Kishore S/o Bhanwar Lal ...Petitioner Versus The Civil Judge (Sr.Div.) No.3 (South), Kota and Others ...Respondent Date of Order ::: 12.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Neeraj K. Tewari, Counsel for petitioners Shri Mahendra Singh, Advocate, for Smt. Kamla Jain, Counsel for respondents No.2 #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//