IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.166 of 2011 Date of decision: 13.6.2011 Anil Kumar …. Petitioner Versus H.P Housing Board ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr. V.S.Chauhan, Advocate. For the respondent: Mr.Dinesh Thakur, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) By means of this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 10.11.2010 passed by the Collector, Sub Division (Urban), Shimla refusing to set aside the ex parte order dated 22.7.2008 and praying that permission be granted to him to lead evidence. According to the petitioner, the case was fixed before the learned Trial Court for 2 25.6.2008 when the Presiding Officer was on leave and thereafter, the case was adjourned for 28.6.2008 but his counsel wrongly noted the date as 28.7.2008. On 28.7.2008 when learned counsel for the petitioner went to the court of the Collector, he found that the case was not on the cause list and on enquiry came to know that the petitioner was proceeded against ex parte on 22.7.2008. Thereafter, an application was filed on 13.9.2008 for setting aside the ex parte order dated 22.7.2008. This application has been rejected by the learned Collector. Hence the present petition. Normally this Court is very liberal in setting aside the ex parte proceedings but any party wanting discretionary relief or indulgence from the Court must approach the Court with clean hands. In the application filed by the petitioner, it was stated that on 25.6.2008, Sh.Dheeraj Verma, counsel for the petitioner had appeared and the case was adjourned for 28.6.2008 but the date was wrongly noted as 28.7.2008 and it was only on 28.7.2008 it was 3 found that the petitioner was proceeded against ex parte on 22.7.2008. The learned Collector held that this statement could not be accepted in view of the fact that on 28th June, 2008 Sh.Rajesh, counsel for the respondent had appeared in person. At this stage, it would be pertinent to refer to the orders dated 25.6.2008 and 28.6.2008 recorded by the learned Collector which read as follows:- “25.6.2008 Case called. Both the parties are present. PO is on leave today. Now come up on 28.6.2008 for proper order.” “28.6.2008 Called. Ld.counsel for petitioner Sh.Raman Sethi present. Sh.Rajesh Ld.counsel for respondent also present. Ld.counsel directed to file PF & list of witnesses within two days. RWs be summoned for dated 22.7.2008 accordingly.” Now alongwith the petition, the petitioner has appended the photocopies of the diary of his counsel. Annexure P/4 is the copy of the diary for 25th June, 2008 and in the same, the present case is reflected as HPHB Vs. Anil Kumar. 4 The previous date is shown as 16.6 and the next date is shown as 28.7. Just below this entry, there is another case titled Renu Baljees Vs. C.K.Baljees in which the previous date is shown as 17.6 and the next date as 28.7. However, surprisingly in annexure P/5 which is a diary for 28.6.2008, the case of Renu Baljees is again reflected and in this diary, the previous date of Renu Baljees is shown as 25.6 and the next date as 16.7. Sh.V.S.Chauhan, learned counsel for the petitioner submitted that probably the presence of the counsel was marked in the present case since he had appeared in Renu Baljees’ case on 28.6.2008. In Renu Baljees’ case also the date is noted as 28.7. Then how did counsel appear on 28.6 and the case recorded in the diary for 28.6? Why was the same not done in the present case? I fail to understand how the diary of the learned counsel shows the case of Renu Baljees both on 28.6 as well as on 28.7. I do not want to say more on this matter but obviously no reliance can be placed on these diaries which 5 were not produced before the learned Trial Court. Since the explanation given by the petitioner is found to be incorrect, I find no reason to interfere in the order of the learned Trial Court and the petition is accordingly rejected. No order as to costs. June 13, 2011 ( Deepak Gupta ) (m) Judge