// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5170/2004 Central Bank of India Branch Alwar through its Manager Versus Urban Improvement Trust through its Secretary, Alwar and Another Date of Order ::: 29.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Rajdeepak Rastogi with Shri N.S. Chouhan, Counsel for petitioner Shri R.K. Mathur, Counsel for respondent No.1 #### By the Court:- Heard learned counsel for the parties. Plaintiff-respondent No.1 filed a suit for recovery of a sum of Rs.1,49,777.50p. against the defendant-petitioner in the trial court, wherein summon was issued to the defendant- petitioner for 22nd February, 1999. The counsel for the plaintiff was present but no one was present on behalf of he defendant on 22nd February, 1999. The court passed the order that fresh summon be issued, on filing process fee. The matter was listed on 26th April,1999 and it was mentioned in the order-sheet that summon of defendant for 22nd February, 1999 has been received after service. The matter was again taken-up on 24th May, 1999 and on the basis of service of summon for 22nd February, 1999, an ex-parte order was passed against the defendant-petitioner. // 2 // The defendant-petitioner filed an application for setting-aside the ex-parte order, on 2nd August, 2001, wherein it was mentioned that the said summon was not received in the Bank; nor it was received by the Manager or any official of the Bank, therefore, there was no proper service on the defendant- Bank; the copy of the plaint was also not annexed with the said summon. It was also contended that one Shri Sarvesh Narain Gupta, Advocate, who used to appear on behalf of the Bank, came to know about ex-parte order, when he was sitting in the Court on 24th July, 2001 and thereafter the present application was filed without any further delay. An affidavit of Shri Sarvesh Narain Gupta, Advocate, has also been filed along-with the writ petition as Annexure-3. The learned trial court, vide its order dated 7th May, 2004, dismissed the application. Being aggrieved with the same, the defendant preferred this writ petition. This Court issued notice to show-cause to the plaintiff- respondent vide order dated 12th August, 2004 and, in the meanwhile, the further proceedings of the trial court were also stayed, therefore, suit in the trial court is still pending. The learned counsel for the petitioner contended that the summon issued to the defendant for 22nd February, 1999 was not served either upon the Manager or upon any official of the Bank nor there is any seal of the Bank on it, therefore, the ex-parte order dated 24th May, 1999 passed against the petitioner be set-aside and an opportunity may be granted to the petitioner to file written-statement. The trial court has // 3 // committed an illegality in not allowing the application of the defendant, therefore, in the interest of justice, the application may be allowed. He further contended that so far as the delay of proceedings is concerned, the plaintiff could have been compensated by awarding reasonable amount of costs in his favour. The learned counsel for the plaintiff-respondent defended the impugned order passed by the trial court and prayed for dismissal of the writ petition. I have heard the learned counsel for the parties and examined the impugned order dated 7th May, 2004 along-with necessary documents placed on the record with the writ petition including an application for setting-aside the ex-parte order filed on 2nd August, 2001. There is specific allegation of the defendant that the summon for appearance on 22nd February, 1999 was not served on the defendant Bank; neither it was served on the Manager nor on any official of the Bank nor there is any seal of the Bank on it. The copy of the plaint was also not annexed with it. From the order it appears that the reply to the application was not filed by the plaintiff, although the learned counsel for the plaintiff-respondent contended during the course of arguments that he has copy of the reply to the application in his file. After considering the submissions of learned counsel for both the parties, I am of the view that right of filing a written-statement is a valuable right of the defendant and, in // 4 // absence of it, it will not be possible for him to defend the suit properly, therefore, it will be just and proper in the interest of justice to set-aside the impugned order passed by the trial court and to allow the application of the petitioner. So far as delay of proceedings is concerned, the same can be compensated to the plaintiff by awarding costs. Consequently, the writ petition is allowed. The impugned order dated 7th May, 2004 passed by the trial court is set-aside. The application dated 2nd August, 2001 filed by the defendant-petitioner for setting-aside the ex-parte order dated 24th May, 1999 is allowed on payment of costs of Rs.1,000/- (Rupees one thousand only). The defendant-petitioner is permitted to file his written-statement on or before 15th July, 2008. It is made clear that in case the written-statement is not filed or the payment of costs is not made on or before the aforesaid date, then the writ petition will be deemed to have been dismissed and the written-statement will not be taken on the record, and no further opportunity in this regard will be granted to the defendant-petitioner. So far as this writ petition is concerned, there will be no order as to costs. (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.4393/2004 In S.B. Civil Writ Petition No.5170/2004 Central Bank of India Branch Alwar through its Manager Versus Urban Improvement Trust through its Secretary, Alwar and Another Date of Order ::: 29.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Rajdeepak Rastogi with Shri N.S. Chouhan, Counsel for petitioner Shri R.K. Mathur, Counsel for respondent No.1 #### 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//