C.R.No.2454 of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.2454 of 2009 Date of Order:1.5.2009 M/s Aquacure Projects, a Partnership Firm and another .....Petitioners Versus Preetinder Singh and others Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mrs. Deepali Puri, Advocate for the petitioners- defendants No.1 & 5. JASWANT SINGH, J By filing this revision petition under Article 227 of the Constitution of India, petitioners-partnership firm and defendant No.5-one of its partners have prayed for setting aside order dated 21.8.2007 passed by Civil Judge (Jr.Division), Chandigarh whereby they were ordered to be proceeded against ex parte; as also order dated 18.12.2008 passed by the learned Civil Judge (Jr. Division), Chandigarh whereby their application for setting aside ex parte order dated 21.8.2007 was dismissed. Respondents No.1 & 2-plaintiffs filed a suit for recovery for a sum of Rs.3,70,755/- under Order 37 CPC against the petitioner-partnership firm and the partners of the firm on 31.7.2007 alleging that they had advanced loan of Rs.3,21,000/- to the petitioner-firm against which the petitioner-firm had given them certain cheques but the petitioner-firm did not make the payment of the said amount. Notice of the said suit was issued to the defendants including petitioners-defendants No.1 & 5 for 21.8.2007. As per record, summons were received by defendant No.5 on 11.8.2007 and C.R.No.2454 of 2009 #2# was required to appear within 10 days to seek leave to contest. It is apparent from the record that except petitioner-defendants No.1/firm and No.5, rest of the partners of the firm appeared and for non- appearance of the petitioners, they were proceeded against ex parte. Subsequently, petitioner-defendant No.5 moved an application for recalling of order dated 21.8.2007, which was also dismissed vide order dated 18.12.2008 on the ground that there was no explanation put forthwith for their non-appearance. Learned counsel for the petitioners-defendants No.1 & 5 submits that on 21.8.2007, when petitioner-defendant No.5 approached the Court for putting in appearance, the Presiding Officer was on leave and in the cause list, the next date was shown, which was, however, wrongly noted down by the petitioner-defendant No.5. It is further submitted that it was not to the knowledge of the petitioners that the case had been put up before the Duty Magistrate as per the orders of the learned District & Sessions Judge on the same day in the absence of the Presiding Officer and, therefore, it cannot be said that non-appearance was intentional. It is further pointed out that the rest of the defendants-partners put in appearance before the Duty Magistrate on the said date on their personal behalf without bothering to putting in appearance on behalf of the petitioners-firm, thus showing their malafide intention. Notice of motion to contesting respondents No.1 & 2- plaintiffs. Sh. Arun Chandra, Advocate, who is present in Court, accepts notice for respondents No.1 & 2-plaintiffs and argues that no ground is made out by the petitioners to join the proceedings. C.R.No.2454 of 2009 #3# I have heard learned counsel for the parties and perused the paper book and in my opinion the present revision petition deserves to be allowed. It is apparent from the record that the claim of the respondents- plaintiffs with regard to the loan is being contested by the petitioner- defendants. It is also not in dispute that on 21.8.2007, when the petitioner- defendant No.5 approached the Court, the Presiding Officer of the Court was availing joining time. It is also not disputed that rest of the partners except petitioner-defendant No.5 appeared before the Duty Magistrate but chose to let petitioner No.1-firm go unrepresented. It is also reasonable to infer from the pleadings that the petitioner-defendant No.5 was not aware of the case/suit being posted for hearing on 21.8.2007 before the Duty Magistrate in the absence of the Presiding Officer. Therefore, in my considered opinion, there were sufficient reasons for the petitioners-defendants for their non-appearance and thus the same cannot be termed as intentional or deliberate. In my opinion, no prejudice would be caused to the respondents-plaintiffs, if an opportunity is granted to the petitioners to join the proceedings. In view of the facts of the case, impugned orders dated 21.8.2007 and 18.12.2008 passed by the learned Civil Judge (Jr. Division), Chandigarh are set aside and the petitioners are allowed to join the proceedings subject to payment of Rs.5000/- as costs to be paid to respondents N.1 & 2/plaintiffs. Petition stands allowed. May 01, 2009 ( JASWANT SINGH ) manoj JUDGE