1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.10132/2005 (Raju Vs. Mukesh Magnani & Anr.) Date of order : 19/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vishwjeet Mantri, Cousnel for the petitioner. Shri J.P.Goyal, Counsel for the respondent. ****** BY THE COURT: This writ petition has been filed for setting aside the order dated 14.12.2005 passed by the learned Addl. District & Session Judge (Fast Track) No.3, Ajmer Camp, Kishangarh in Civil Suit No. 13/2005 (Mukesh Mangwani Vs. Raju), whereby the application of the petitioner filed under Order 9 Rule 7 of Civil Procedure Code has been partly allowed. The application was filed with the prayer that the ex-party proceedings against the petitioner by order dated 16.03.2005 be set aside and the defendant – petitioner be permitted to participate in the proceedings of the suit. The learned trial Court treated service of notice upon the petitioner as effected because he declined to accept the same and consequently, the notice had to be posted outside his residence. 2/4 Learned trial Court merely permitted the defendant-petitioner to participate in the proceedings of the suit from the stage of hearing but by that time, the evidence of the plaintiff had already been recorded and evidence of the defendant could not be recorded. Learned counsel for the petitioner has argued that the notices were earlier sent twice but were not served upon the petitioner and when third time also, the notice sent to him, he was available at his residence and therefore, it was not correct to contend that he declined to accept notice. This cannot be accepted because the petitioner even replied to the notice served upon him by the respondent under Section 106 of the Transfer of Properties Act. He further submitted that this Court may in the interest of justice permit at least one chance to the petitioner to by file the written statement and adduce evidence within the time limit as may be fixed and that petitioner-defendant would undertake to abide by that. Learned counsel for the petitioner has argued that the learned trial Court, keeping in view the contention of the petitioner, and has passed a just and reasonable order. When the petitioner refused to accept the notice, service was treated as complete. Even then, in the interest of justice, the learned trial Court permitted him to submit his written argument and participate in the hearing, therefore, there is no case for interference by this Court. 3/4 Having heard the learend counsel for the parties and perused the impugned order, I find that learend trial Court recorded the findings that the defendant – petitioner refused to accept the notice and therefoer, the process server had to affix the notice his residence. There no reason to disbelieve that finding on mere assertion of the petitioner that he was not available at his residence. In any case, however, when I find that proceedings of the suit in the trial Court have remain stayed pursuante to the stay order passed by this Court on 20.12.2005 and petitioner is tenant in the disputed premises for a long time, it would be in the interest of justice that he is allowed one last opportunity to contest the matter on merits rather than the matter being decided against him for his default. Having regard to the facts and circumstances of the case, I am therefore, pursuade to set aside the impugned order dated 14.12.2005 and permitted the petitioner to participate in the proceedings of this suit on following conditions:- (i) that the defendant-petitioner shall pay a sum of Rs.2,000/- as a costs to the plaintiff-respondent before the learend trial Court. (ii) that the defendant-petitioner shall file his written statement within a period of 45 days from the date next fixed before the learned trial Court. (iii) that the defendant-petitioner shall produce affidavits of hsi witnesses and make them available for cross-examination on any date within 45 days counting from the date of filing of the written statement. 4/4 (iv) no further opportunity of evidence shall be allowed to him. The instant S.B.Civil Writ Petition NO. 10132/2005 is accordingly, allowed in the terms indicated above. (MOHAMMAD RAFIQ), J. preety Item No.6