WRIT pEIIHON No. L4éz 0F 2004 PLMNTIFF R%$P%N § .3; ‘ Kumar Agrawal son of Bhola PraSad Agrawal, Omer Pawan Borwels Service, Nehru Park Road, shyamj ee Marg Surajpur, Distrint Surguja (C.€§.) Thrcugh n The Special Attorney Holder Pawan Kumar Agrawal san of Bhola Prasad Agrawal. PETITIGV UNDER Am‘IGLE 22 OF TFIE WSTITUTIQ-‘J OF INDII}: 1 TITI ERS l. South Ea5tem Coalfields Ltd. EN TS Seepat Raad, Bil aspur Threugh- Managing Director, a5: South Eastern Coalfields Ltd. Vishranpur Area, Vishrampur, District Surguj a (C. G: ) ,3 Chief General Managerw m ‘ HIGH COURT OF CHHATTISGARHVAIT’BILASPUR I ‘ K -..- ijng‘l “B?ench: Ho’n’ble Shri Justice Prashant Kumar Mishra V f 1 Writ Petition No.1462 of 2004 Petitioners South Eastern Coamelds Ltd. and another Resgondent I versus Ajay Kumar Agrawal Writ Petition under Article 227 of the Constitution of India ORAL ORDER (Passed on 23rd November, 2010) Heard. 2. The petitioners have assaiied the legaiity, validity and propriety of the order passed by the Court below rejecting their application under Order 9 Rule 7 of the Code of Civil Procedure, 1908 (henceforth ‘the Code’) for setting aside the ex parte order and for taking on record their written statement. 3. The respondent/plaintiff has preferred a suit for recovery of an amount of Rs.11,00,820/—. The suit was fixed for appearance and filing of written statement by the petitioners/SECL on 2-4—2003. On thesaid date, the counsel engaged by the petitioners/defendants could not appear, however, Advocate Shri R.N.Prasad requested the Court for seeking adjournment, which >was refused on the ground that the said counsel had no Vakalatnama for appearing on behalf of e :the petitioners. I Present: Shri H.B.Agrawal, Senior Advocate with Smt. Meera Jaiswal, Shri Varun Sharma, counsel for the respondent. counsel for the petitioners. S 4. The petitioners/defendants moved the subject application under Order 9 Rule 7 of the Code inter a/ia submitting that the counsel engaged by the defendants could not appear because the scooter on which the counsel was traveling was punctured. it was also stated that one Shri S.M.Awadhiya appeared on behalf of the petitioners in the afternoon, however, by that time, the case was proceeded ex parte. ti V 5. The trial Court has rejected the application after observing that the reason assigned for non-appearance as also the failure to file written statement within 90 days is not sufficient. 6. Learned Senior Advocate appearing for the petitioners would argue that the learned trial Court has taken a hyper-technical and pedantic approach while dealing with the application for setting aside the ex parte order and that the finding regarding insufficiency of the reason explaining absence of the counsel and the Law Officer of the petitioners is perverse. It is put-forth that if the petitioners are not allowed to file written statement after setting aside the ex parte order, they may suffer a decree, as, in the absence of any defence, the plaintiff’s case would be accepted. 7. Learned counsel appearing for the respondent/plaintiff has submitted that there is no explanation as to why the counsel engaged by the petitioners did not appear. He would submit that the petitioners have been taking repeated adjournments in the trial \ Court, therefore, there was no other option left with the Court but to s \ proceed ex parte and close their right to file written statement. 3 8. On perusal of the documents annexed with the writ petition, it would appear that the trial Court has observed that it is not mentioned by the petitioners as to which lawyer was traveiing in the scooter and which Law Officer or representative of the petitioners was traveling with the lawyer in the scooter and in the absence of such particulars, the reason assigned could not be held proper. The trial Court has also observed that affidavit of Shri S.M. Awadhiya has not been filed and it has also not been explained whether Shri Awadhiya was also possessed of the written statement. ln Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, (1987) 2 SCC 107, the Hon’ble Supreme Court has held that while dealing with the application for condonation of delay or setting aside ex parte order, the trial Court should not be hyper-technical and that when the application is found to be bona fide, effort should be made to dispose of the case on merits. 9. In Vithalbhai (P) Ltd. vs. Union Bank of India, (2005) 4 SCC 315, the Hon’ble Supreme Court has reiterated the principles which govern exercise of power under Order 9 Rule 7 of the Code. lt has been held therein that the Court has power to pass order setting aside ex pan‘e order by balancing equities between the parties and for satisfying ends of justice. The Hon’ble Supre‘me Court has also held that while dealing with an application under Order 9 Rule 7 of the Code, conduct of the parties, explanation given by the plaintiff or the defendant, advantages or prejudices to either party, award of cost etc. are factors to be considered in exercise of such discretion. A” ”I’n Kailash vs. Nanhku and others, (2005) 4 SCC 480, the Hon’ble 01/9 4 Supreme Court has held that the time schedule of 90 days prowded under Order 8 Rule 1 of the Code for fmng the written statement Is directory and that the power of the Court to extend trme depending ‘ upon facts of the case rs not taken away and that In appropriate flmg the written statement beyond the trme schedule provrded by Order 8 Rule 1 of the Code 10. Taking Into conSIderatlon the pnnctples lard down by the Hon ble Supreme Court In the above referred cases and applying the same In the facts of the present case It Is to be noticed that the petrtroners/SECL ls a public sector company and was defendlng a surt flled by the respondent Though there was some delay m filing the wntten statement as rt was presented after expiry of 90 days yet rt rs not such a case where the defendants did not fle the wntten statement for a consrderably long trme and were avoiding the trial.. The reason assigned for non-appearance of the coUnsel or the Law Officer is about brake-down of the scooter The application under Order 9 Rule 7 of the Code cannot be decrded as If the suit Itself Is deCIded on merits. ln the absence of anything contrary to or apparently perverse regarding the reason assigned explaining the non—appearance and when the application has been presented Without Inordlnate delay the trial Court In the Interest of justice should have granted the application 11. Learned counsel appearing for the respondent/plaintlff has submitted that the present Is not a case for exerCIse of Jurisdiction “Under Article 227 of the Constitution of lndla however this Court Is ywx T*"'m , A‘Vy‘ ”n W3 5 of the opinion that if the impugned Order is allowed to stand, it shaii occasion failure of j’ustice inasmuch as the petitioners may suffer a Thus, the impugned order deserves to be and is hereby set aside. The instant writ petition is allowed. decree without filing written statement. 12. r There shall be no order as to costs. However, in the facts and circumstances of the case, it is directed that the trial Court shall do well to dispose of the suit as early as possible preferably within a period of six months from the date of presentation of certified copy of this order. Sdl- _ Prashant Kumar Mishra Judge Gopal