IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.39 of 2010 Date of decision : June 18, 2010 Ravi Kumar …Petitioner. Versus Shashi Pal and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners : Mr. Romesh Verma, Advocate. For the Respondents : Mr. Anil Kumar God, Advocate, for respondent No.2. None for respondent No.1. Surjit Singh, J (Oral) Present petition, under Article 227 of the Constitution of India, is directed against the order dated 16th November, 2009, Annexure P-3, of the trial Court, whereby application, under Order 9 Rule 7 of the Code of Civil Procedure, moved by the petitioner for setting aside order dated 30th November, 2006 of ex-parte proceedings, passed against him in a suit instituted by respondent No.1, has been dismissed. 2. A suit has been instituted against the petitioner by respondent No.1. Petitioner did not appear on the date fixed for his appearance and, therefore, he was proceeded against ex-parte. It happened on 30th November, 2006. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Petitioner moved an application on 5th April, 2008, for setting aside the aforesaid order of ex-parte proceedings. He stated that he was a non-resident Indian and lived in USA and it was only in the year 2008 that he came to know about the institution of the suit and passing of the ex-parte order dated 30th November, 2006, against him, when the respondents went to his house to demolish the house, on the strength of an ex-parte temporary injunction. Learned trial Court has dismissed the application. 4. I have heard the learned counsel for the parties and gone through the record. 5. Plea that petitioner is not living in India, is proved by the testimony of his attorney Jai Chand. This attorney testified that no summons in the case had been served upon him or the petitioner. No evidence was adduced by the respondents to show that the petitioner or his attorney had, in fact, been served. He did not examine the Process Server, though he himself appeared as his witness and testified that service had been effected. Admittedly, service was not effected by him and, therefore, his statement could not have been used as evidence to hold that the service had, in fact, been effected upon the petitioner or his attorney. 6. In view of the abovestated position, petition is allowed and the impugned order of learned trial Court, copy Annexure P-3, is set aside. Consequently, application, under Order 9 Rule 7 of the Code of Civil Procedure, filed by the petitioner is allowed. Trial Court shall now afford the …3… petitioner an opportunity to file written statement and to defend the suit. Petition stands disposed of. Pending application, if any, also stands disposed of, as having become infructuous. June 18, 2010(sd) ( Surjit Singh ), J