// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6020/2008 Hajari Singh S/o Shri Prem Singh Versus Laxman Singh S/o Shri Prem Singh and Others Date of Order ::: 25.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Jai Prakash Gupta, Counsel for petitioner Shri R.R. Baisla, Counsel for respondents No.1 to 4 #### By the Court:- Admit. Heard learned counsel for the parties. The applicants/respondents No.1 to 4 filed an election petition under Rule 80 of the Rajasthan Panchayati Raj Rules, 1996, in the trial court, challenging the election of defendant No.2-petitioner, who was elected to the post of Sarpanch, Gram Panchayat Kishanpura, Panchayat Samiti Javaja, District Ajmer. The defendant No.2 did not remain present in the trial court on 25th April, 2005 in spite of service of summon of the election petition, therefore, the trial court passed an ex-parte order against him. Thereafter the election petition proceeded further. The applicants' evidence has been closed in the case. The // 2 // defendant No.2/petitioner filed an application on 29th October, 2007 under Order 9 Rule 7 CPC for setting-aside ex-parte order, and that application was contested by the applicants/respondents No.1 to 4. The trial court, vide its order dated 12th December, 2007, rejected the application. The said order is under challenge in this writ petition preferred on behalf of the non-applicant No.2. The learned counsel for the petitioner contended that the petitioner could not understand properly about his appearance in the court regularly and soon he came to know about ex-parte order passed against him, he immediately moved the application; he was elected by the public at large and, in case, the impugned order is not set-aside and an opportunity is not granted to him to file reply to the election petition then there is possibility that his election may be set-aside and in that eventuality he will suffer irreparable loss, therefore, in the interest of justice, one opportunity may be granted to him to file his reply to the election petition; he does not want to cross-examine any witness of the applicant in order to avoid delay in the proceedings and, so far as the delay in filing the application under Order // 3 // 9 Rule 7 CPC is concerned, he is prepared to pay the costs to the opposite-party. The learned counsel for the respondents contended that the petitioner did not appear before the trial court deliberately on 25th April, 2005, therefore, the trial court was fully justified in passing the ex-parte order against him. He further contended that he did not care about the case and for about two-and-a- half-year he did not move the application before the trial court for setting-aside the ex-parte order. He further contended that no cogent reason has been assigned by him for his non- appearance on 25th April, 2005, therefore, the petitioner has no case and the writ petition is liable to be dismissed. I have considered the submissions of the learned counsel for the parties and examined the impugned order passed by the trial court. It has been observed in the impugned order that on 25th April, 2005 the non-applicant Hajari Singh did not appear in spite of service of notice. The application was filed on 29th October, 2007 after a delay of two-and-a-half- year. No application under Section 5 of the Limitation Act was filed explaining the delay in filing the application. It has also been observed that 'vakalatnama' on behalf of the // 4 // non-applicant No.2 was filed after the ex-parte proceedings were ordered. After considering the submissions of the learned counsel for the parties in the light of reasons assigned by the trial court, I find that so far as applicability of Section 5 of the Limitation Act is concerned, the same was not applicable as there is no period of limitation prescribed for application under Order 9 Rule 7 CPC. The period of 30 days is prescribed only for application under Order 9 Rule 13 CPC for setting-aside the ex-parte decree. The petitioner was elected to the post of Sarpanch and, in case, an opportunity is not granted to him to file reply to the election petition then his case is going to be prejudiced; so far as delay of proceedings is concerned, the opposite- party can be compensated by way of costs. The learned counsel for the non-applicant No.2-petitioner has already undertaken that he will not call any witness of the applicant for cross-examination. As a result of the aforesaid discussion, the writ petition is allowed. The impugned order dated 12th December, 2007 passed by the trial court is set-aside. Consequently the ex-parte order dated 25th April, 2005 is also set-aside. The petitioner is permitted to file his reply to // 5 // the election petition within a period of 15 days from today on payment of costs of Rs.5,000/- (Rupees five thousand). The amount of costs will be paid by the petitioner before filing of the reply, failing which it will be deemed that no further opportunity in this regard is granted to him and the writ petition will be deemed to have been dismissed. It is needless to mention again that the petitioner has undertaken that he will not call any witness of the applicant for cross- examination. The petitioner will adduce his evidence within a period of one month from the date of filing of his reply and no further opportunity in this regard will be granted to him. So far as this writ petition is concerned, there will be no order as to costs. (Narendra Kumar Jain) J. //Jaiman//