IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 415 of 2006 Pratap Singh son of Sri Kundan Singh (since deceased) 1/1 Smt. Janki Devi and others. … Appellants. Versus Balwant Singh S/O Sri Kunwar Singh Rana. … Respondent. Mr. B.K.Gupta, Advocate, learned counsel for the appellant. Mr. P.C.Maulekhi, Advocate, learned counsel for the respondent. Date March 04, 2011. Hon’ble B.S.Verma, J. This appeal is directed against the order dated 6-6-2006 passed by the Additional District Judge/III Fast Track Court, Nainital in Misc. Case No. 40 of 2004, Balwant Singh Vs. Pratap Singh arising out of Original Suit No. 38 of 1997, whereby the application (4-C) moved under Order 9, Rule 13 of the C.P.C. by the respondent-defendant was allowed subject to payment of costs of Rs. 2,000/- and the orders dated 26-7-2001 and 22-8-2001 as well as the ex parte judgment and decree dated 20-3-2004 were set aside. A perusal of the record shows that the appellant Pratap Singh filed Original Suit No. 38 of 1997 against the respondent Balwant Singh for specific performance of contract. It appears that during the pendency of the suit before the trial court, neither the respondent-defendant nor his counsel put in appearance on a number of dates in the case with the result that the opportunity to cross examine was closed by order dated 26-7-2001 and suit was ordered to proceed ex parte by order dated 22-8-2001 and ultimately, the suit was decreed ex parte by order dated 20-3-2004 in favour of the appellant. Aggrieved by the aforesaid orders, the defendant Balwant Singh moved an application under Order 9, Rule 13 C.P.C. asserting therein that the defendant resides at a long distance from court at Nainital and he used to make contact with his counsel on telephone. In the year 2001, in connection with the marriage of his daughter he could not attend the court on the date fixed and his counsel also could not put in appearance before the trial court. He came to know of the ex parte judgment and decree only on 20-3-2004. The respondent- defendant also filed his affidavit to substantiate his claim. The defendant also 2 filed an application under Section 5 of the Limitation Act for condonation of delay. The appellant-plaintiff filed objection against the applications made by the defendant-respondent, but has not filed any affidavit to refute the affidavit of the respondent. The trial court after hearing both the parties has ultimately allowed the application (paper no. 4-C) moved by the respondent-defendant subject to payment of cost of Rs. 2000/- as mentioned in the impugned order and set aside the earlier orders dated 26-7-2001 and 22-8-2001 as well as ex parte judgment and decree passed by it. Aggrieved by the order dated 6-6-2006, the appellant-plaintiff has filed the present appeal mainly on the ground that the order passed by the trial court is based on conjectures and surmises. I have heard learned counsel for the parties and perused the material placed before this Court. During the pendency of this appeal, sole appellant Pratap Singh had died. He was substituted by his legal heirs Smt. Janki Devi and two others. Learned counsel for the appellants has vehemently contended that the learned lower court has erred in allowing the application of the respondent-defendant particularly when it was found by the court that the respondent-defendant had committed gross negligence in pursuing his defence. Undisputedly, the suit filed by the appellant-plaintiff against the respondent Balwant Singh had not been decided on merits. The learned Additional District Judge while passing the impugned order has considered all the aspect of the matter and has also observed that to do complete justice between the parties, the application be allowed with heavy cost and consequently imposed a sum of Rs. 2,000/- as cost upon the defendant- applicant while allowing the application moved by him. Having considered the rival contentions of the learned counsel for the parties, I am of the view that no prejudice has been caused to the appellants as the suit is yet to be decided on merits. Moreover, despite adequate opportunity to controvert the affidavit filed by the respondent- defendant, the appellant-plaintiff did not like to file affidavit in support of his 3 objection filed before the trial court. The learned Additional Judge has rightly allowed the application of the respondent-defendant, which was duly supported by an affidavit and by award of costs of Rs. 2000/-, the appellant-plaintiff appears to be adequately compensated in terms of money. No other point was urged or argued before me. In the result, the appeal has no force and is liable to be dismissed outright. The appeal is dismissed. No order as to costs. The suit is pending since the year 1997, hence the trial court is directed to decide the suit on merits expeditiously, as far as possible. The respondent shall also co- operate in the speedy disposal of the suit before the court concerned. The interim order dated 11-7-2006 passed by this Court is vacated. (B.S.Verma, J.) RCP