IN THE HON’BLE HIGH COURT OF C.G. AT BILASPUR W.P. (227) No. (32%“ OF 2010 PETITIONER/ Defendant .......... M. ‘ . / Gopal Prasad Sharma, S/o Shri Dayaram Sharma, aged about M” \o 52 years, Caste-Brahman, R/o Village—Patthalgaon, District— Jashpur (C.G.) VERSUS RESPONDENT] : Savan Kumar Agrawal, S/o Plaintiff Karamchand Agrawal, aged about 26 years, R/o Patthalgaon, District-Jashpur (C.G.) through Special Power of Attorney, Karalnchand Agrawal, S/o Chetan Das, aged about 47 years, R/o Patthalgaon, » District-Jashpur (C.G.) 21? WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA . “ / HIGH COURT OF CATISGARH'AT HHT BILASPUR Writ Petition (227) N0. 2914 of 2010 PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present Ms. Sharmila Singhai, Advocate for the petitioner. Shri Abhishe'k Sinha, Advocate for the respondent. O R D E R (Passed on 29d; day of September, 2010) Challenge in this petition is to the order dated 07.05.2010 (Annexure P/1) passed by the C1V1l Judge Class II Patthalgaon, Jashpur 1n C1v11 Suit No 11-A/2006 whereby the application of the petitioner (hereinafter referred to as ‘the defendant’) filed under Order 9 Rule 7 of the Code of Civil Procedure, 1980 (for short ‘the C.P.C.) for setting aside the ex- parte proceeding, has been dismissed. The indisputable facts, in brief, are that the respondent (hereinafter referred to as ‘the plaintiff) tiled a suit before the Civil Judge, Class II, Patthalgaon, Jashpur, being Civil Suit No. 11-A/2006, for eviction, recovery of arrears of rent, and compensation. The suit was listed for examination of the defendant and his witness on 05.03.2010. Neither the defendant nor his witnesses appeared, thus, the Court proceeded ex—parte : PETITIONER Gopal Prasad Sharma. DEFENDANT VERSUS RESPONDENT Savan Kumar PLAINTIFF On the other hand, Shri Sinha, learned counsel appearing for the plaintiff would submit that the case was fixed for examination and cross-examination of the defendant and his witnesses on 15.01.2010. Thereafter, it was adjourned to 05.03.2010. On 05.03.2010, neither the defendant nor his witnesses were present and further, an application under Order 17 rule 1 of the CPC was also not moved. Accordingly, the learned Trial Judge proceeded eX-parte at 3.30 pm. Further, in the application filed under Order 9 Rule 7 of the CPC (Annexure P/S), filed by the defendant, there was no reason at all for non-appearance of the defendant which is evident from the application itself. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. The plaintiff has filed this petition on 17.06.2010 and on 24.06.2010, an interim order staying the further proceedings before the Court below till the next date of hearing, was passed by this Court. There is no doubt that the application under Order 9 Rule 7 of the C.P.C. did not disclose any reason, more so, sufficient or cogent reasons. It is further evident that on 19.01.2010, the case was listed for recording statement of defendant and his witnesses. The same was adjourned on an application filed by the defendant under Order 17 rule l of the CPC. Thereafter, it was listed on 25.01.2010, 15.02.2010, and 05.03.2010 and on all the dates, the case could not proceed further for want of availability of the defendant and his witnesses. On 05.03.2010, when the matter was taken in the second round at 3.40 p.m., neither the defendant, his witnesses, nor his counsel were present. Thus, the Court below rightly proceeded ex—parte in the matter. I rnust Inake it clear that the Court cannot function all the time at the convenience of the parties and their counsel. They have to cooperate with the Court and participate in the proceedings, as and when required by the Court. However, having regard to the facts situation of the case and in the interest of justice, I am of the considered opinion that one more opportunity may be granted to the defendant to present himself for recording his statement and produce other witnesses in support of his case. Accordingly, the impugned order dated 07.05.2010 (Annexure P/l) is set aside, subject to payment of Rs. 5000/- as cost to the plaintiff-respondent. The petition is allowed. The court below may proceed with the case further, in accordance with law. Interim order granted on 24.06.2010 isvacated. I e W t . Sd/- ‘ -‘ l Satish K.Agnihotri l . ‘i Judge I: Amit