1 25 S.B. CIVIL WRIT PETITION NO.3923/2006 Hardeen Ram Vs. Jetha Ram & Anr. Date of Order :: 15th December 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Rajeev Purohit, for the petitioner. Mr.M.D.Boob, for the respondents. .... In the civil suit for recovery of an amount of Rs.2,08,500/- [C.O No.372/2004 in the court of Additional District Judge (Fast Track) No.3, Jodhpur] filed under the provisions of Order 37 of the Code of Civil Procedure (CPC), the petitioner-defendant is said to have been accorded unconditional leave to defend. It appears that issues were framed in the case on 08.02.2006 and the matter was posted for plaintiffs' evidence on 25.02.2006. On this date, the plaintiff produced his affidavit in evidence and the matter was fixed for cross-examination on 29.03.2006. On 29.03.2006, the counsel appearing for the defendant-petitioner sought time to carry out cross- examination of the plaintiff and time prayed for was allowed by the Court on costs of Rs.300/-. Though the learned Trial Court adjourned the matter to 26.04.2006, but it has been the case of the defendant-petitioner that his counsel noted the next date as 27.04.2006 and for this reason, nobody attended the matter on his behalf before the Trial Court on 26.04.2006. 2 On the date so fixed i.e., 26.04.2006, the plaintiff produced another affidavit of a witness Surendra Kumar who was present in the Court and the plaintiff Jetha Ram was also present; however, counsel for the defendant did not appear despite several calls and the matter having been taken in the morning hours, learned Trial Court, after waiting until 11.30 a.m., proceeded to close down the right of cross-examination and also proceeded to close the evidence of the parties and fixed the matter for final arguments on 27.04.2006. On 27.04.2006, the learned Trial Court recorded again that nobody was present on behalf of the defendant and final arguments were heard; and the matter was posted for judgment on 29.04.2006. On 29.04.2006, however, the learned Trial Court recorded that the counsel for the defendant did move an application under Section 151 read with Order IX Rule 7 CPC on 27.04.2006 and for this reason, the judgment could not be dictated. However, after hearing the counsel for the parties on such application moved on behalf of the defendant, the matter was posted for orders on 08.05.2006. Then, on 08.05.2006, the matter was adjourned to 10.07.2006 for further arguments on the said application. The learned Trial Court thereafter heard the arguments on the application on 10.07.2006 and proceeded to reject the 3 same by its impugned order dated 13.07.2006 essentially on the consideration that the application for setting aside ex-parte proceedings was moved only after arguments had been heard in the matter and, with reference to the decision of this Court in the case of Babu Lal Vs. Rajendra Singh 1996 DNJ (Rajasthan) 524, the application could not be entertained at that stage. Aggrieved, the petitioner has preferred this writ petition and herein, show cause notices were issued on 27.07.2006 and further proceedings in the suit were ordered to remain stayed. Though the matter is listed for admission after service, at the request and with the consent of the learned counsel for the parties, the matter has been heard finally at this stage. Learned counsel for the petitioner contended that the learned Trial Court has taken too technical a view of the matter and has failed to consider that no order for proceeding ex-parte as such was passed against the petitioner and then, an application was indeed moved on his behalf on 27.04.2006. Learned counsel further submitted that looking to the overall facts and circumstances, particularly when it was pointed out to be a bonafide mistake of the counsel recording a different date in his case diary, the defendant ought not to have been penalised for the default in appearance on 26.04.2006. Learned counsel yet further submitted that for the prayer as 4 made by the defendant-petitioner in the application dated 27.04.2006, the principles in case of Babu Lal (supra) do not ipso facto apply as the petitioner did not move an application for filing any document or pleading but moved essentially for recalling of the order made in closing down his right of cross- examination and leading evidence. Learned counsel appearing for the respondent-plaintiff though in the first place attempted to support the order impugned particularly with the submissions that the matter having been posted for Judgment after hearing the arguments, no any application could have been entertained but then, in all fairness submitted that the plaintiff would not stand ceremonies and if the defendant would make payment of reasonable amount of costs and would proceed with the matter without causing unnecessary delay, an opportunity may be extended to the defendant-petitioner. For the reasonable and fair stand taken on behalf of the plaintiff-respondent, it does not appear necessary to enter into any other part of the controversy and it appears reasonable and justified, having regard to the overall facts and circumstances, that the defendant-petitioner be extended an opportunity to cross-examine the plaintiff and his witness and so also to lead evidence, if so chosen, but without causing further delay in the matter. 5 It is noticed that even on 29.03.2006, the learned Trial Court extended an opportunity to the defendant-petitioner only on costs of Rs.300/-. It was definitely required of the defendant-petitioner to have made payment of such amount of costs on the next date in the first place but it is not borne out from the record that if the defendant-petitioner made the payment of such amount of costs of Rs.300/-. In the overall circumstances of the case, it appears appropriate that an opportunity be extended to the defendant on costs of Rs.3,000/- (three thousand) that would, of course, be inclusive of the amount of costs earlier imposed by the Trial Court. It has been informed during the course of submissions that while further proceedings in the suit have been stayed in this writ petition, the learned Trial Court has fixed the matter now on 19.02.2009 awaiting orders. On the date so fixed, the plaintiff should remain present before the Trial Court along with his witness and on this date, it shall be required of the petitioner to make payment of costs of Rs.3,000/- (three thousand) as required by this order to the plaintiff or his counsel. Upon making such payment of costs, the defendant- petitioner shall be entitled to cross-examine the plaintiff and his witness but no further adjournment shall be granted for the purpose to the petitioner-defendant. After closure of the plaintiffs evidence, it shall further be required of the defendant- 6 petitioner to produce his entire evidence, if so chosen, on the next date to be fixed by the Trial Court; and if the defendant- petitioner be found causing any delay or adopting any dilatory tactics, it shall be permissible for the Trial Court to pass appropriate orders to deal with the situation. With the requirements and directions aforesaid, this writ petition is allowed to the extent indicated above. The impugned order dated 13.04.2006 is set aside; and the order dated 26.04.2006 stands modified as indicated. There shall not be any further order as to costs of this writ petition. (DINESH MAHESHWARI),J. s.soni