// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2567/2006 Sajan Singh S/o Shri Rajju Singh Versus Additional Civil Judge (Jr.Div.) cum Judicial Magistrate Class-I, Court No.1, Alwar and Another Date of Order ::: 25.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Jai Kishan Yogi, Counsel for petitioner None present for respondents #### By the Court:- Heard learned counsel for the petitioner. No one is present on behalf of the respondent in spite of service of notice. This writ petition, on behalf of the defendant, is directed against the impugned order dated 13th February, 2006 passed by the Additional Civil Judge (Junior Division) cum Judicial Magistrate, 1st Class, No.1, Alwar, whereby two applications of the petitioner – first under Order 9 Rule 7 CPC and another under Section 5 of the Limitation Act, have been dismissed. Plaintiff-respondent No.2 Saroj Devi // 2 // filed a suit for permanent injunction in the trial court along-with the application for temporary injunction. The defendant did not appear in the trial court on 19th July, 2004, therefore, ex-parte order was passed against him. Subsequently, an application was filed by him on 4th July, 2005 under Order 9 Rule 7 CPC for setting-aside ex-parte order and another application under Section 5 of the Limitation Act for condonation of delay in filing the application. The application was contested by the plaintiff by filing written-reply dated 7th November, 2005. The trial court, vide its order dated 13th February, 2006 rejected both the applications. The said order is under challenge in this writ petition. The learned counsel for the petitioner contended that the application for temporary injunction filed on behalf of the plaintiff- respondent was dismissed by the trial court on 20th March, 2003 and, being aggrieved with the same, an appeal was preferred by the plaintiff and the defendant attended the appeal from time to time and remained under the impression that during the pendency of the appeal, no proceedings will take place in the suit, therefore, under bona-fide belief, he could // 3 // not attend the suit proceedings in the trial court on 19th July, 2004. As soon as he came to know about this order, he immediately moved the application under Order 9 Rule 7 CPC along-with the application under Section 5 of the Limitation Act, but the trial court committed an illegality in dismissing both the applications vide impugned order, therefore, the said order be set-aside. A notice was given to the plaintiff- respondent but no one is present on her behalf in spite of service of notice. I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by the trial court for rejecting both the applications. The trial court has observed that on earlier occasion also ex-parte proceedings were drawn against the defendant which were set-aside and again an ex-parte order has been passed against him. After considering the submissions of learned counsel for the petitioner, I am satisfied that there was sufficient cause for the petitioner for his non-appearance in the trial court. The application, moved on his behalf, was bona-fide and, in the facts and circumstances of the case, the delay in filing // 4 // the application should have been condoned and ex-parte order should have been set-aside. The order passed by the trial court appears to be illegal and the same is liable to be set- aside. Consequently, the writ petition is allowed. The impugned order dated 13th February, 2006 passed by the trial court is set-aside. The applications filed by the defendant-petitioner under Order 9 Rule 7 CPC and under Section 5 of the Limitation Act, both, are allowed. The ex-parte order passed by the trial court dated 19th July, 2004 is hereby set-aside. So far as this writ petition is concerned, there will be no order as to costs. A copy of this order may be sent to the concerned Court. (Narendra Kumar Jain) J. //Jaiman//