IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 314 of 2010 Date of decision: 29.10.2010 _________________________________________________________________ Biptu Ram .....Petitioner. Versus Abhi Ram .....Respondent. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. _________________________________________________________________ For the petitioner: Mr. Rajiv Rai, Advocate. For the respondent: Mr. Rakesh Thakur, Advocate. V.K. Sharma, J (Oral). Heard. 2. Order dated 31st May, 2010 passed by the learned Civil Judge(Junior Division), Solan, H.P., whereby an application under Order 9 Rule 7 CPC filed by the petitioner/defendant has been dismissed declining his prayer for recalling order dated 4.3.2008 passed by the learned trial court, vide which he was proceeded against ex parte in the main suit filed against him by the respondent/plaintiff and the counter claim filed by him in that suit was also dismissed in default. 3. The ground for recalling the ex parte-cum-dismissal order was that the learned counsel for the petitioner/defendant had noted down the date of hearing in his lawyer's diary incorrectly, which contention has not found favour with the learned trial court. 4. It is fairly settled by now that it is always expedient and in 1 Whether reporters of Local Papers may be allowed to see the judgment? No -2- the interest of justice that a litigation is heard and disposed of on merits rather than being dismissed either on the point of limitation or some other technical procedural ground. On this analogy in the present case as well, it would be desirable that a verdict on merits is passed by the learned trial court. 5. In view of the above after taking care to remedy the prejudice, if any, that may be caused to the respondent/plaintiff by allowing this petition by way of costs, the petition is allowed and the impugned order dated 4th March, 2008 is set aside with a direction to the learned trial court to proceed with the case from the stage when the petitioner/defendant was proceeded against ex parte by permitting him to join further proceedings and by restoring the counter claim filed by him to its original number and to dispose of the same alongwith the suit in accordance with law, for which the petitioner/defendant shall pay a sum of Rs.750/- to the respondent/plaintiff as costs, which shall be tendered/paid on the date to be fixed hereinafter. 6. The parties through their learned counsel are directed to appear before the learned Trial Court on 11.11.2010. Let a copy of this judgment be sent to that Court for information and compliance. (V.K. Sharma) Judge 29th October, 2010 (vt)