IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 516 of 2002 Pyarelal Kesharwani S/O Ram Das, Bardana Merchant, Mahabir Ganj, District Nainital. … Petitioner. Versus 1. Naresh Kumar S/O Shri Pooran Lal, 2. Ajay Kumar S/O Phakir Chand, 3. Ram Narain S/O Chedalal, 4. Laxmi Narayan S/O Chedalal (since deceased) 5. Umesh Chand S/O Kishanlal, All R/O Muhallah Lahoriya, Tehsil Kashipur, District US Nagar. … Respondents. Sri J.C.Belwal, Advocate, learned counsel for the petitioner. Date December 18, 2009. Hon’ble B.S.Verma, J. Heard learned counsel for the petitioner and perused the record. None of the respondents is represented despite sufficient service. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 7- 2-2000 passed by Additional Civil Judge Nainital in Misc. Case No. 5 of 1996 and the order dated 19-4-2002, passed by 1st Additional District Judge, Haldwani in Civil Misc. Case No. 9 of 2000 Pyarelal Vs. Naresh Kumar and others. According to the petitioner, respondent nos. 1 and 2 filed a Civil Suit (No. 63 of 1992) against the petitioner and five others. The petitioner was arrayed as defendant no. 6 in the said suit. The suit was contested by defendant nos. 3 to 5, who were sellers and defendant no. 6. On behalf of the petitioner/defendant no. 6, the defendant nos. 3 to 5 were doing Pairvi. But for the reasons best known to them, the defendant nos. 3 to 5 were also absent during the pendency of the suit and the suit proceeded ex parte against all the defendants, which was 2 ultimately decreed ex parte vide judgment and decree dated 14-3- 1996 by the Additional Civil Judge Nainital. When this fact came to the notice of the petitioner that the suit has been decreed ex parte on 14-3-1996, he immediately moved application for setting aside ex parte decree within time on 23-3-1996. The application was dismissed on the ground of delay that the petitioner had not participated in the proceedings of the suit between the period 31.1.1995, when the order to proceed ex parte was passed, and 14- 3-1996, i.e. for about 15 months, while the application under Order 9, Rule 13 C.P.C. was filed within time. On an appeal being preferred, the same has been rejected by the appellate court on the ground that the petitioner has not explained the delay for about two years, when the suit was pending. In this case, the respondents have been served sufficiently, but despite service, no one is present, as mentioned earlier. I have perused the application under Order 9, Rule 13 C.P.C., which has been moved for setting aside the ex parte decree. The application was moved on 23-3-1996, while the ex parte decree was passed on 14-3-1996. Learned counsel for the petitioner has vehemently contended that the two courts below has erred in law in not considering the ground taken by the applicant-petitioner in his application in paragraph no. 6 that the opposite party nos. 1 and 2 and the O.P. Nos. 3 to 7 were in collusion and the O.P. Nos. 3 to 7 by playing fraud upon the applicant making his believe that there was no need for the applicant to contest the case, kept the applicant in dark. Learned counsel also urged that rejection of the application would cause irreparable loss to the applicant-petitioner which could not be compensated otherwise. As such, the impugned orders are not tenable in the eye of law. Moreover, if the suit is 3 decided on merits, no prejudice is going to be caused to the respondents. Both the courts below have not considered this fact that the application for setting aside the ex parte decree was filed by the petitioner-defendant no. 6 promptly. In support of the application, the applicant-petitioner had also filed his affidavit. When the application under Order 9, Rule 13 CPC was made within time and that too supported by an affidavit. In my view, the orders passed by the trial court as well as by the appellate court without taking note of the fact that the application has been made promptly, should not have passed order of rejection of the application. It is thus obvious that the impugned orders are perverse and liable to be quashed. The writ petition deserves to be allowed outright. The writ petition is allowed. Consequently, both the impugned orders are quashed. The application moved by the defendant no. 6-petitioner under Order 9, Rule 13 C.P.C. stands allowed. The ex-parte judgment and decree dated 14-5-1996 passed by the Additional Civil Judge, Nainital in Civil Suit No. 63 of 1992, Naresh Kumar and others Vs. Ram Narayan and others stands set aside. The trial court is directed to decide the said suit afresh on merits after giving notice except the petitioner and opportunity of hearing to both the parties, expeditiously, as far as possible. The petitioner shall appear and shall file certified copy of this order before the trial court in the first week of February, 2010. ( B.S.Verma, J.) RCP 4