HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.821 of 2004 (M/S) Shri Atma Ram & another … Petitioners Versus Ist Addl. Civil Judge (J.D.), Dehradun & another …. Respondents Dated:- 07th September, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. S. K. Jain, the learned counsel for the petitioners and Mr. R. C. Arya, the learned brief holder for the respondent no.1. Inspite of service, plaintiff opposite party no.2 is not present. It transpires that the plaintiff instituted a suit on 23rd December, 1999 and on the very same day pressed his application under Order 39 Rule 1 & 2 of the C.P.C. for the grant of a temporary injunction. The trial court did not find it fit to grant an exparte injunction and, accordingly, issued notice to the defendant fixing 15th March, 2000 for written statement and on 22nd March, 2000 for framing of issues. The plaintiff, being aggrieved by the issuance of notice, filed a revision on 24th December, 1999, wherein the revisional court granted an exparte injunction and further issued notice to the defendant for appearance on 17th January, 2000. By the said order, the revisional court also summoned the lower court record. The defendant was served with the notice issued by the trial court as well as by the revisional court and, accordingly, appeared before the revisional court on 17th January, 2000 and contested the revision. The revision was eventually decided on 22.11.2002 directing the parties to appear before the trial court on 09.12.2002 and further directing the trial court to allow the defendant to file his objection and, thereafter, decide the injunction application on merit. It transpires that the defendant appeared and sought time, but, thereafter, it appears that the court remained vacant till 22.12.2003 and, eventually, when the functioning of the court resumed, the defendant found to his dismay, an order dated 22.05.2000 directing to proceed exparte against the defendant for not appearing inspite of being served sufficiently. Accordingly, the defendant filed an application dated 08.12.2003 to recall the order dated 22.05.2000. Unfortunately, this application was titled as an application under Section 5 of the Limitation Act, even though, the prayer was for the recall of the order dated 22.05.2000. The trial court, after considering the matter, rejected the said application by an order dated 12th December, 2003. Not being satisfied, the petitioners again filed an application under Section 151 of the C.P.C. for the recall of the order dated 22.05.2000 and 12.12.2003. This application was again rejected by an order dated 06.08.2004 on the ground that the said application was not maintainable. The petitioners, being aggrieved, have filed the present writ petition under Article 227 of the Constitution for the quashing of the aforesaid orders. Inspite of service, the plaintiff opposite party has not appeared. Admittedly, the defendant was served with the summons of the trial court and chose not to appear under a belief that the record of the lower court record has already been summoned by the revisional court and, therefore, there was no occasion for the defendant to appear before the trial court. The defendant in any case had appeared and contested the matter before the revisional court and, upon remand from the revisional court, came to know for the first time that such an order has been passed on 22.05.2000. The said order was passed at the stage when the revisional court had already summoned the record. 3 In the light of the aforesaid, even though the plaintiff was duly served, nonetheless, he had made out a sufficient ground for not being present. The non-appearance of the petitioners defendant before the trial court was not deliberate, but, was under a bonafide impression that the case was not proceeding further because the record had been summoned to the revisional court. In the light of the aforesaid, the court below should have recalled its orders. The order dated 22.05.2000 and consequential orders dated 12.12.2003 and 06th August, 2004 cannot be sustained and are quashed. The writ petition is allowed. The petitioners is directed to appear before the trial court and file their written statements within two weeks from the date of receipt of the copy of this order. Registry is directed to remit a certified copy of this order to the trial court within two weeks from today for necessary action. (Tarun Agarwala, J.) Dated 07.09.2010 LSR