IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 8197 of 2010(O&M) Date of Decision: October 31, 2011. M/s Nuchem Weir India Ltd. ...... PETITIONER(s) Versus M/s Perfectpac Limited. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Kunal Dawar, Advocate for the petitioner. None for the respondent. ***** RAM CHAND GUPTA, J.(Oral) Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 29.07.2010, Annexure P1 passed by learned Civil Judge(Junior Division), Faridabad vide which application dated 09.05.2009, Annexure P3 moved by petitioner-defendant for setting aside order dated 16.11.2006 vide which petitioner-defendant was proceeded ex parte, was rejected. CR No.8197 of 2010 I have heard learned counsel for the petitioner and have gone through the whole record including the impugned order passed by learned trial Court. Brief facts relevant for the decision of present revision petition are that, respondent-plaintiff filed a suit for mandatory injunction against the present petitioner-defendant. Notice was issued to petitioner-defendant for 16.11.2006. Petitioner is a company. It has been admitted by learned counsel for the petitioner-defendant that summons were received by some official of the petitioner-company and that however, at that time there was labour unrest in the factory and hence, the factory and the office remained closed for some time. Further plea has been taken that later on summons were sent to the counsel, namely, Mr. Nikhil Chopra representing the petitioner-company in various cases before the courts and however, it is contended that he could not appear as he was selected in Delhi Judicial Service and that later on when the fact came to the knowledge of petitioner- company that petitioner-company had been proceeded ex parte and nobody appeared on behalf of petitioner-company before the trial court, some lawyer was engaged who appeared and filed the present application for setting aside ex parte proceedings, which has been rejected by learned trial Court vide impugned order. It has been contended by learned counsel for the petitioner- defendant that the application has been declined by learned trial Court merely on the ground that the same is time barred as it has been filed after two and half years from the date on which the petitioner-company was ordered to be 2 CR No.8197 of 2010 proceeded ex parte. It is further contended that mere delay on behalf of petitioner-company for filing application under Order 9 Rule 7 of Code of Civil Procedure (for short the ‘Code’) cannot be said to be a sufficient ground for declining the prayer of petitioner-company as no period of limitation has been prescribed for setting aside ex parte proceedings. It is further contended that moreover no prejudice is going to be caused to respondent-plaintiff if the application of petitioner-defendant is allowed as no evidence has been adduced on behalf of plaintiff and the case is fixed for consideration of the application of respondent-plaintiff for amendment of the plaint. Perusal of impugned order passed by learned trial Court shows that the application for setting aside ex parte proceedings filed on behalf of petitioner-defendant was dismissed merely on the ground that the same was filed after a long span of time and hence, the same is time barred. However, there is force in the argument of learned counsel for the petitioner-defendant that no period of limitation has been prescribed for moving application under Order 9 Rule 7 of the Code for setting aside ex parte proceedings. It has been so held by this Court in various judgments. The question of limitation for filing an application under Order 9 Rule 7 of the Code for setting aside ex parte proceedings is no more res integra. On the point, judgment of this Court passed in Ghanshyam Dass v. Kamal Kishore and another, 2011(3) RCR (Civil) 846 can be referred. The relevant paragraphs of which read as under:- “7. So far as the question of limitation for filing an application under Order IX Rule 7 of the Code is concerned, the same is no 3 CR No.8197 of 2010 more res integra. It has been held by this Court in various judgments that no period of limitation is prescribed for filing an application for setting aside ex parte proceedings under Order IX Rule 7 of the Code. In Trilok Singh v. Smt.Ganga Devi, 1983 (1) RLR 688, it was observed that period of 30 days under Article 123 of the Limitation Act, 1963, applies only to an ex parte decree and not to ex parte proceedings and that there was no limitation provided for setting aside the ex parte proceedings, which depends upon the discretion of the Court, on the peculiar facts of each case. The said observation was reiterated by this Court and followed in Siri Chand v. Ram Dhan and another, 1989 (1) Rev.L.R 481. 8. In another judgment rendered in Delhi Development Authority v. Shanti Devi, AIR 1982 Delhi 159, it was observed that there was no rule that an application under Order IX Rule 7 of the Code is to be filed within 30 days from the date of order of proceeding ex parte. Similar view was taken in Palani Nathan v. Devanai Ammal, (1989) 2 Mad L.J. 259. 9. This Court in a later judgment rendered in Kuldip Kaur v. Gurdeep Singh, 1994(1) Civil Court Cases 0001, after referring to all the previous judgments, also held that no limitation is provided for setting aside ex parte proceedings under Order IX Rule 7 of the Code.” So far as the fact as to whether sufficient grounds exist for setting aside ex parte proceedings is concerned, it may be mentioned that under Order 9 Rule 7 of the Code, applicant is to show only good cause for his failure to appear in the court on the date fixed whereas under Order 9 Rule 13 of the Code for setting aside ex parte decree, sufficient cause has to 4 CR No.8197 of 2010 be shown. In the present case, petitioner-defendant has come to the court with clean hands. Petitioner-defendant is a company. Many employees are working in the company. It has been admitted by learned counsel for the petitioner-company that summons were sent to the company and however, as there was labour unrest in the company, summons could not be immediately sent to their standing counsel representing the petitioner-company in various cases in the courts. Later on summons were sent to the counsel engaged by the company and however, he was selected in the Delhi Judicial Service and hence, he did not appear before the court. When this fact came to the knowledge of the company, some other counsel was engaged and the present application was filed. Moreover, it has been stated by learned counsel for the petitioner that no evidence has been recorded so far in the case and the case is fixed for consideration of the application of the respondent-plaintiff for amendment of the plaint. Hence, no prejudice is going to be caused if the application of the petitioner-defendant is allowed and the petitioner- defendant is permitted to contest the suit. However, so far as the fact that the conduct of the petitioner-company resulted in delay in the decision of the suit is concerned, the other party can be compensated by way of cost. Hence, in my view, illegality has been committed by learned trial Court in passing the impugned order. Hence, the present revision petition is accepted and the impugned order dated 29.07.2010 is set aside and as a consequence thereof application dated 09.05.2009 filed by petitioner-defendant for setting aside ex parte order dated 16.11.2006 is allowed. 5 CR No.8197 of 2010 However, petitioner-defendant is burdened with cost of `10,000/- which shall be a condition precedent. ( RAM CHAND GUPTA ) October 31, 2011. JUDGE 'om’ 6