AMKtDED PETITION IN THE HIGH COURT OF CHHATTISG^RH AT BILASPUR W.P.(C) N0. 4430/2007 PETITIONER DEF^NDANT No.6 RESPONDENT PLAINTIFF 1) 2] 3] 4] 5] 6] 7] Makhan S/o. Sundara Uraon, Aged about 35 years, R/o. Village Kot, Tahsil Lundra, District Surguja (CG) VERSUS Mangal Prasad Yadav, S/o. Janki Yadav, Aged about 50 years, R/o. Village Kot, Tahsil Lundra, District Surguja (CG) Managing Director, Chhattisgarh State Co-operative Agricultural Ruler Development Bank Limited Raipur (CG) (®.T. ^rsq ^isciirft ^Rr wftflT f^tws fv 'KiFRti, ^ray S.T.) General Manager, District Cooperative Agricultural 8s Rural Development Bank, Ambikapur, (Rrar •Mg<t'i'i1 ^Rr ^ ''n^'T fiwv 1'^, 3fR<t>|ij,'<) District Surguja (CG) District Deputy Cooperative Society Distt Surguja (CG) Registrsu- Arabikapur, Branch Manager/Sales Officer, Disfa-ict Cooperative Agricultural 85 Rural Development Bank Limited Branch Lundra, District Surguja (CG) State ofChhattisgarh, Through: Collector Surguja, Ambikapur. Motiram S/o. Late Ravina Aged about 45 Years R/o. Village Kot, Tahsil Lundra, District Surguja (CG) (Respondent no.^2 to7^ire respondents/defendantsl WRITN?miON UNDBR ARTICLE 227 OF THK CONSTITUTION OF INDIA Al jB(AC(y"*TTT * '"-* •^"^-^nnaaa^ ^.'. , ^^> HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant KymaMVIishra Petitioner Respondents Writ Petition (C.l No.4430 of 2007 Makhan versus Mangal Prasad Yadav and others Present: Shri Manoj Paranjpe, counsel for the petitioner. Shri Rajeev Shrivastava and Shri Malay Shrivastava, counsel for respondent No.1. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondents No.4 and6. No one appears for other respondents. Writ PetLtion under Article 227 of the Constitution of India ORAL ORDER >th (Passed on 30'" November, 2010) Heard. 2. The petitioner is the auction purchaser and is arrayed as defendant No.6 in the suit. The trial Court proceeded ex parte against the petitioner on 7-7-2006. An application under Order 9 Rule 7 of the Code of CivilProcedure, 1908 (henceforth 'the Code') was moved by the petitioner on 3-4-2007. This application has been rejected by the trial Court by its order dated 4-5-2007, which is impugned in this writ petition. 3. Shri Manoj Paranjpe, learned counsel for the petitioner would submit that the trial Court has not appreciated the entire facts and circumstances of the case in its true perspective and has taken a hyper-technical view of the matterwithout considering that if the ex 'parfe order dated 7-7-2006 is not set aside, the petitioner shall be ...ff.3.-&^, %A. 'H J '%^'1"^ prejudiced in his defence and it will virtually allow the suit preferred by the plaintiff. 4. Shri Rajeev Shrivastava and Shri Malay Shrivastava, learned counsel for respondent No.l/plaintiff have argued that in the application filed by the petitioher under Order 9 Rule 7 of the Code the nature of ailment or the period of ailment etc. were not mentioned and it was not supported with any medical certificate, therefore, the trial Court was fully justified in'rejecting the prayer for setting aside the ex parte order. 5. The application under Order 9 Rule 7 of the Code has been filed as Annexure P-10 with the writ petition. On perusal of the application, it would appear that the nature of ailment is not mentioned, however, at the same time, it is to be seen that the application was supported with an affidavit of the petitioner, as has been observed in the order passed by the trial Court. In the reply submitted by respondent No.l/plaintiff, objections were raised that the application is cryptic, however, the reply was not supported with any affidavit nor it was submitted in categorical terms that the petitioner was not suffering with any disease and that he was seen moving in the village on the date of hearing. 6. In Collector,Land Acquisition, Anantnag and another vs. Mst. Katiji and others, (1987) 2 SCC 107, the Hon'ble Supreme Court has held that while dealing with the application for \ condonatipn of delay or setting aside the ex parte order, the trial rCourt should not be hyper-technical and that when the application is found to be bona fide, effort should be made to dispose of the case on merits. 7. In the opinion of this Court, the trial Court has ignored the said principles laid down by the Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others (supra). 8. Learned counsel for respondent No.l/plaintiff have placed reliance on the judgment rendered by the Hon'ble Supreme Court in Surya Dev Rai vs. Ram Chander Rai and others, (2003) 6 SCC 675. It is settled therein that powers underArticle 227 of the Constitution of India should not be exercised to correct mere errors of law, however, in the present case, if the ex parte order is not set aside, the petitioner shall be precluded from filing his written statement to defend the suit. Thus, allowing the ex parte order to remain intact would occasion failure of justice and the petitioner may suffer a decree in the absence of denial of plaint allegations. In paragraph 39 of the judgment in Surya Dev Rai vs. Ram Chander Rai and others (supra), the Hon'ble Supreme Court has also observed that not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. It has been further observed that at the end, we may sum up by saying that the power is there but the exercise is disGretionary which will be governed solely by the dictates ofjudicial ~~';i ''A \^y/ conscience enriched by judicial experience and practical wisdom of thejudge. 9. In theopinion of this Court, in the facts and circumstances of the case, it will be too harsh for the petitioner to disallow him to file his written statement and suffer a decree without real contest in the suit. This Court deems it proper to interfere in the matter in the givenset offacts and as a consequence, the writ petition is allowed. The impugned order dated 4-5-2007 is set aside. As a consequence, the ex parte order dated 7-7-2006 is set aside subject to payment of cost of Rs.1,000/- (Rupees One Thousand) by the petitioner to respondent No.l/plaintiff to be paid within a period of eight weeks from today. c;^/_ prashant Kumar Mishra Judge Gopal