Civil Revision No. 5342 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5342 of 2009 Date of decision: 19th November, 2009 Rajesh Kumar and others .......Petitioners Versus Naresh Jain and others .......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Rajinder Goyal, Advocate for the petitioners. Mr. Arvind Bansal, Advocate for the respondents. Rajive Bhalla,J.(Oral) The petitioners challenge the order dated 3.09.2009, passed by the Civil Judge (Junior Division), Kaithal, setting aside ex parte proceedings against defendant no. 1. The petitioners filed a suit for permanent injunction to restrain the defendants from opening any apertures in the walls AB & CD. During the pendency of the suit, the prayer was amended and it is prayed that a mandatory injunction be issued, directing the defendants to close the apertures and restore the walls AB & CD to their original state. Jagan Nath Jain son of Shri Mattu Ram defendant no. 1, in the suit, was proceeded against ex parte. He passed away on 21.08.2004. After his death, respondent no. 1 his legal Civil Revision No. 5342 of 2009 -2- representative filed an application for setting aside the ex parte order and proceedings. In addition, he filed an application for being impleaded as a party in his independent capacity and as a legal representative of Jagan Nath Jain. During the pendency of this application, Jagan Nath Jain was given up as a party, by statement dated 24.08.2009, which reads as follows:- “Statement of Shri R.D.Sharma, Advocate for plaintififs stated that I give up defendant no. 1 by considering him un-necessary.” After considering the applications and the replies filed thereto, the trial court, while keeping the application, under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as a party in abeyance, set aside the ex parte order and proceedings against defendant no. 1. Counsel for the petitioners submits that as the petitioners have given up Jagan Nath Jain defendant no. 1, the trial court could not have set aside the ex parte order and proceedings, particularly when the application for being impleaded as a party has not been decided. Counsel for the respondent, on the other hand, submits that as the suit, and the relief prayed for, are primarily directed against Jagan Nath Jain, the statement deleting him as a party is malafide. Even otherwise, the trial court has not passed any order, accepting or rejecting the statement and therefore, Jagan Nath Jain deceased, continues to be a party. Civil Revision No. 5342 of 2009 -3- I have heard counsel for the parties, and perused the impugned order. Admittedly, the petitioners made a statement giving up Jagan Nath Jain defendant no. 1 as a party. The statement, if accepted by the trial court, would necessarily exclude Jagan Nath Jain from the array of parties and would render the order initiating ex parte proceedings meaningless. The trial court should have therefore, considered the consequence of the statement deleting the name Jagan Nath Jain, the application filed under Order 1 Rule 10 of the Code of Civil Procedure and the application for setting aside ex parte proceedings, simultaneously. In view of what has been stated hereinabove, the revision petition is allowed, the order dated 3.09.2009, passed by the Civil Judge (Junior Division), Kaithal, is set aside and the matter is remitted to the trial court to decide both the applications afresh and in accordance with law within a month from the receipt of a certified copy of this order. Parties are directed to appear before the trial court on 7.01.2010. [RAJIVE BHALLA] JUDGE 19th November, 2009 Shivani Kaushik