CR No.5070 of 2009 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5070 of 2009 (O&M) DATE OF DECISION: 28.10.2009 **** Charanjit Singh . . . . Petitioner VS. M/s. Lakhmi Chand Dhruv Kumar Rice & Daal Mills and others . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. S.L. Bhalla, Advocate for the petitioner ***** SURYA KANT, J 1. This revision petition is directed by the defendant against the order 13.10.2004, whereby, he was proceeded ex parte, as well as the order dated 19.08.2009 passed by the Additional Civil Judge (Senior Division), Safidon dismissing his application to set aside the ex parte proceedings. 2. The respondent – Rice Mill has filed a suit for recovery of Rs.48,24,311/- against M/s. Himalaya International Karsa Road, Nilokheri - a partnership firm as well as against its partners, who are impleaded as defendants No.2 to 5. The petitioner has been impleaded as defendant No.3. Notice was issued to all the defendants and as per one of the impugned order dated 13.10.2004, summons sent to defendant No.1 to 3 were received back with the report of refusal. CR No.5070 of 2009 - 2 - 3. Thereafter, the case was called several times and since no one appeared on their behalf, the above-stated defendants were proceeded against ex parte. 4. The petitioner thereafter moved an application dated 30.05.2009 under Order 9 Rule 7 read with Section 151 CPC for setting aside the ex parte proceedings, inter alia, claiming that it was in the evening of 26th May, 2009 only that the Clerk of V.K. Deswal, Advocate telephonically informed the petitioner that he had come to know from the Cause List of the Civil Court at Safidon that there was one more suit pending against the partnership firm ‘M/s. Himalaya International’. The petitioner averred that in another Civil Suit titled as Angori Devi vs. M/s. Himalaya International, he had engaged Sh. Deswal, Advocate in the year 2008 and incidentally his Clerk noticed from the Daily Cause List that the present Civil Suit was also pending against the said partnership firm. The petitioner took the plea that no notice was ever served on him nor did he refuse to accept the same and the reports to this effect were procured by the plaintiff. 5. The above-stated application has been dismissed by the Civil Court, Safidon vide second impugned order dated 19.08.2009 after observing that the summons were duly issued to the petitioner – Charanjit Singh s/o Darshan Singh for appearance on 06.08.2004 but as per the report of the Process Server he refused to receive the summons at his residence and his mother told him that Charanjit Singh would be available in the factory and when called in the factory premises, Charanjit Singh refused to accept the summons. Thereafter, fresh summons were issued to the petitioner and as per the report of the Process Server, the petitioner – defendant No.3, who was very much present in the factory premises, pulled up the Process Server, CR No.5070 of 2009 - 3 - misbehaved with him and then refused to accept the notice. The petitioner was, therefore, proceeded against ex parte. 6. The Civil Court further observed that the application to set aside the ex parte proceedings was moved after more than 5 years just to delay the proceedings. 7. Aggrieved the petitioner has approached this Court. 8. As noticed earlier, the respondent-plaintiff had filed the recovery suit against the partnership firm and its partners in the year 2004. Yet, with a view to give an opportunity to the petitioner-defendant to defend himself even at this belated stage and at the same time to protect the interest of the respondent-plaintiff, an opportunity was given to the counsel on 5th September, 2009 to seek instructions from the petitioner as to whether he was willing to furnish bank guarantee for the disputed amount. 9. On 9th September, 2009, counsel for the petitioner stated that the petitioner was not in a position to furnish the bank guarantee. He was still given one more opportunity to furnish adequate security comprising title deeds of immoveable properties valuing more than the amount sought to be recovered. On 14th September, 2009, counsel for the petitioner stated that the petitioner is not willing even to furnish the desired security bonds also. He, however, sought and was granted adjournment as the petitioner wanted to compromise the matter with the respondent-plaintiff. 10. After granting one or two opportunities for the afore-stated purpose, this Court passed the following order on 7th October, 2009:- “Having heard counsel for the petitioner for some time and in order to test the bona fide of the petitioner, it is directed that subject to depositing a sum of Rs.5,00,000/- with the Registry of this Court by way of a demand draft in favour of the respondent-plaintiff CR No.5070 of 2009 - 4 - within one week from today, let notice of motion be issued to the respondents for 28.10.2009. The petitioner, however, has refused to comply with the order reproduced above also. 11. Learned counsel for the petitioner has been heard on merits. Relying upon the decision of the Hon’ble Supreme Court in G.P. Srivastava vs. R.K. Raizada & Ors., 2000(87) AIR (SC) 1221, it is argued that even if the petitioner was negligent and failed to appear despite service still it would be in the interest of justice to set aside the ex parte proceedings and allow him to contest the suit as the respondent-plaintiff can be suitably compensated with costs. Reference has also been made to a decision of this High Court in East India Transport Agency vs. Hindustan Vacuum Glass Ltd., (P&H) 1989 PLJ 598 wherein ex parte proceedings were set aside with payment of costs to the respondent-plaintiff. Learned counsel also referred to yet another decision of this Court in Ram Pal and Ors vs. Jagrup Singh and Others, (P&H) 1987 PLJ 355 to contend that fair trial should not be denied to a party even after it failed to appear due to negligence. Reliance has also been placed on the decision of Madhya Pradesh High Court in Ramhet and others vs. Ajaypal Singh and others, 2003(2) RCR (Civil) 322 to contend that an application under Order 9 Rule 7 CPC should be entertained and allowed liberally. 12. Having heard learned counsel for the petitioner at some length, I do not find any merit in this revision petition. In my considered opinion the application moved by the petitioner is a glaring example of mala fide abuse of the judicial process. The petitioner firstly attempted to browbeat with the Process Server and misbehaved with him and then refused to accept the notice. Thereafter, as it appears, he has been CR No.5070 of 2009 - 5 - closely watching the suit proceedings and after a long gap of five years, he suddenly moved the present application on the basis of a concocted story. The lack of bona fide on the part of the petitioner can be safely inferred from the fact that he wants ex parte proceedings to be set aside after a period of over five years even without furnishing any type of security or in a recovery suit where the total claim of the respondent-plaintiff by now, if decreed, would be more than Rs.50 lacs. 13. True it is that a party should not be thrown out of the Court on hyper-technicalities and should, as far as possible, be afforded a fair trial. The expression ‘negligent’ inheres bona fide mistake. It sans malice. A bona fide or unintentional error can be permitted to be rectified by suitably compensating the opposite party with costs. Contrary to it, an act laced with oblique motive and meant to harass the opposite party or to take the Court for a ride, has to be dealt with strictest manner as the doors of the Courts cannot be allowed to be de-faced by those who come to the Courts with dirty hands. The petitioner falls in the latter category. 14.Dismissed. (SURYA KANT) JUDGE 28.10.2009 vishal shonkar