CW-7052/2006-UOI & Ors. Vs. Jeevraj & Anr : Judgment dt.3.7.08 1/3 S.B. CIVIL WRIT PETITION NO.7052/2006 UOI & Ors. Vs. Jeevraj & Anr. Date of order : 3rd July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Kamal Dave for the petitioners. Mr. B.P. Rajpurohit for the respondents. --------- 1. Heard learned counsels. 2. This writ petition is directed against the order of learned appellate Court dated 22.11.2005 whereby the appeal filed by the petitioner Union of India through General Manager, Western Railways, Jodhpur and other authorities of the railways was rejected in effect rejecting the application under Order 9 Rule 13 C.P.C. for setting aside the ex-parte proceedings against the petitioner railways. 3. The learned counsel for the petitioner Mr. Kamal Dave has drawn attention of the Court towards para 10 of the writ petition wherein it has been stated that:- “..... the fact of decree passed against them came to their knowledge only through the above referred notice dated 18.12.2002 which was received on 27.12.02. It is further submitted in the above application that after having knowledge of the above decree being passed against the petitioner- defendant, they immediately made all efforts to contact the conducting advocate Shri Tara Chand Tak but on account of winter vacation Shri Tara Chand Tak was out of station and only on CW-7052/2006-UOI & Ors. Vs. Jeevraj & Anr : Judgment dt.3.7.08 2/3 08.01.2003 (wrongly typed as 08.01.93) they could make contact with the advocate. They came to know that the advocate authorised to conduct the case has already stopped def;ending his client i.e. Petitioner/railways without there being any intimation to that effect. It is also submitted that in view of non-cooperation of the advocate engaged in the case, applications for getting the required order sheets and judgment were moved by the officer of the petitioner-defendant. The copies were received on 14th January, 2003 4. With this averment, the application under Order 9 Rule 13 was filed before the learned trial court for setting aside the ex- parte proceedings but the same came to be rejected and appeal against that too failed. Hence, this writ petition was filed by the petitioner railways before this Court. 5. The learned counsel for the respondent Mr. B.P. Rajpurohit has opposed the submissions and in reply to para 10 of the writ petition, it has been stated by the respondents that: “That the contents of para no.10 of the writ petition are not admitted and hence denied, it is submitted that the facts regarding filing of application under O.9 R.13 a/w 151 C.P.C. are not disputed but rest of the averments are denied for want of knowledge.” 6. There is no specific denial from the side of the CW-7052/2006-UOI & Ors. Vs. Jeevraj & Anr : Judgment dt.3.7.08 3/3 respondent that Advocate concerned, who represented the petitioner railways before the learned trial court Mr. Tara Chand Tak was not punctual in attending the proceedings on behalf of the defendant railways and the same resulted in ex-parte decree against the defendant railway. As stated in para 10 of the present writ petition the said Advocate also appears to have not cooperated with the defendant railways or its officials in obtaining the copies even after decree was passed ex-parte against the defendant. Such attitude on the part of the Advocate concerned, who represented the railways in trial court can hardly be appreciated. The larger public interest of Government i.e. Railways cannot be allowed to suffer on account of such negligence of the Advocate concerned and the party cannot be allowed to suffer at the hands of the Court. 7. In the circumstance in which the ex-parte decree was passed and sought to be executed which led to filing of this writ petition compels this Court to set aside the impugned orders and the ex-parte proceedings against the petitioner railways. 8. The writ petition is accordingly allowed and the impugned order and judgment dated 15th March, 2005 and 22nd Nov., 2005 Annex.1 and 2 respectively are set aside. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.54 babulal/-