AMgA/pa P57)7M“ 53 mesh Mishra rs, aged about 21 yea Saja, District Durg (C.G.) r, Tahsil , A ‘ DEFENDANT N04 5. Smt. Kamla~Ba+—---Widowgpf Later— Bhagwan Prasad Sharm’laj, aged about 60 years, through Suresh Prasad Sharma ' (Advocate), Gayanagar, Durg (C.G.). I DEFENDANT N06 6. State of Chhattisgarh, thkough the Collector Durg, CoHectorate Building Durg (C.G.). WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA M HIGH COURT OF CHHATTISGARH AT BILASPUR sin Ie Bench: Hon’ble shri Justice Prashant Kumar Mishra Writ Petition 1227i No.3205 i 20W PETiTiONER 3n“. Asha Gupta DEFENDANT N05 Versus PQIN’HFF RESPONDENTS ' Chanden Singh Thakur and éthers. Shri P.P. Sahw, counsel fcr the petitioner. 8M Santosh Kumar Chaturvedi, eounsel for respandent NM. Ku. Sangeeta Mishra, P.L. for the Statelresponcaent No.6‘ WRIT PETiTl0N UNDER ARTicLE 227 3F THE CONSYITU'HDN 9F lNDiA L ' i ORALoRnER (94.03.2010; Chanerme in this petition under Articie 227 at the Sonstitution 9f india is ta the awe! pasaed by themai Court on 03115.2G08 {Annexure PM), whereby the petitianer/defendant No‘ 5’s appiication under Order 9 Rule 7 0i C.P.C. has been rejected by the triai Court. (2) The piaintiffiirespondent No.1 has filed 7a suit fa; specific performance of the agreement dated 28~01-2004. in the said suEt :he present petitioner has been arrayed as defendant No. 5 as she is the .subsequent purchaser of the suit property. (3) The trial Court issued the summons and the'matter was fixed tar 08—08400? for appearance of the parties. 0n the said date the petitioner did not appear in the triat Court and she was proceeded r ex—parte on the ground that the registerect notice sent to her has been returned unserved on acoount of refuse! by her brother—in—iaw {Bevar) Reiesh Gupta ts accept the notice. f i/ Th d {4) e petitioner move the sumect appucation under Order 9 Ruie 7 cf C.P.C. on 18—01—20G8 on the ground inter alia tht on the date a when the {egistered notice s brought by the Postman for service she wa was not available m the house as she had gone to Durg and that her brether—in—law appears to have refused the notéce on account f 9 ignorance. It was statd in the application that refuse! by her brother— e tn-law cannot be accepted as effective service an the petitioner and the e-arte preceedinge drawn against her on 98-08-2007 deserves t be xp o set-aside because she is interested in participating and defending the an 7“ suit it was stated that she has purchased the property 69—08-200 by registered sale-deed and has been settled in possession and f the i ex-parte proceedings are not set-aside she shail suffered irrearable p m is ic f r‘ toss apart fro giving re to multiplity o the iitigation. (5) The respondent No.1iplaintiff, in his reply, denied il the a submissio made by the petitioner and stated that e ex—arte n th p proceeding drawn aainst the petitioner is fuiiy justitied on accoun f g t o refusat of his brother—in—iaw who is residing in the hoe ang with the us lo petitioner and that the sai refusal would amount to proper erve of d sic notice on the petitioner. {6) Having heard learned counsei for the parties, his £01m is of the t opinion that service oi notice on the petitioner eouid not have been deemed to have been affected on account of refusal by her Devar. The learned trial Court has not considered the matter in its true perspective and has railed upon the endorsement made toy the ’ ' Postman without even trying to get the notices I summons served upon l the petitioner by ordinary mode. On 03-08—2007 the suit was fixed for lA/ I l the first time for appearance of the defendants and the present is not a l l l Rx‘ ' _ ‘ i *RHv ‘ / i \ 0% _3 _ case where the defendant’s No. 5 has been avo'kding ta accept mtfce far a long time nr has heme“ Muse to accept the mtice. The reason assigned by the Mat Court for proceeding ex—parte is noi proper, and that the explanation oifered by the petitionet for her non-appearance on 08—98-2007 ie supported with a good and sufficient pause. (7) W the impugned order is not set-aside it shall occasion failure of justice inasmuch as the petitioner shall be precluded from filing her written statement and she will not be able to defend her case in the iriai Court. it is trite law that in the matters of proceeding ex—parte or in setting-aside ex—parte proceedings Courts are required to be hilly satisfied about the malatide or negligence 0t callousnees oi the party and that every endeavour shall be made by the Court to afford proper e and adequate opportunity to all the parties to piead and defend their case on merits in the euit. (8) The present is a case tor interference in exeroiee of Articie 227 of the Constitution of india. For the foregoing reasons, the instant petition is allowed. The impugned order is set—aside and as a consequence the order passed by the trial Court on 98-98—2007 proceeding ex—parte against the petitioner is also set—aside. 'i'here I shalt be no order as to costs. Sdl— : Prashant Kumar Mishra Judge \K jtrat - unapyt