// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5694/2007 Devlal Kahar S/o Kishan Ram Kahar Versus Devlal Kalal S/o Moti Lal Kalal and Others Date of Order ::: 19.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Kaleem Ahmed Khan, Counsel for petitioner Shri Satish Pachori, Counsel for respondent #### By the Court:- Admit. Shri Satish Pachori, Advocate, appears for the respondent No.1. The respondents No.2 and 3 are only Proforma parties, therefore, their service is dispensed with. Heard learned counsel for the parties. The plaintiff-respondent No.1 filed a suit for eviction and recovery of arrears of rent in the trial court in the year 2006 wherein the defendant did not appear in spite of service of summon, therefore, the trial court passed an ex-parte order and closed his written-statement vide order dated 2nd November, 2006. The statement of the plaintiff's witnesses were recorded but they were not cross-examined by the defendant. Thereafter the // 2 // defendant moved an application for setting- aside the ex-parte order and to grant an opportunity to file reply in the trial court on 26th April, 2007. The plaintiff filed a reply to the application on 2nd May, 2007. The trial court, vide its order dated 17th May, 2007 rejected the application of the defendant, which is under challenge in this writ petition preferred on behalf of the defendant. The learned counsel for the petitioner contended that he had engaged an Advocate in the trial court, who did not appear to attend the case. The petitioner could not come to know about passing of ex-parte order, therefore, the application was not filed in time. He further contended that this is a matter relating to eviction of the defendant, therefore, in the interest of justice, ex-parte proceedings drawn against him be set-aside and he may be given one opportunity to file written-statement. He further submits that so far as delay of proceedings is concerned, the plaintiff may be compensated by way of costs. The learned counsel for the respondent contended that the defendant did not appear in the court deliberately in spite of service of summon. He further contended that the defendant has not even paid the due arrears of rent. His // 3 // further contention is that in case this court is inclined to grant one more opportunity to the defendant to file written-statement after setting-aside the ex-parte order then at-least an exemplary costs of Rs.5000/- may be imposed on the defendant. The learned counsel for the defendant- petitioner agreed to pay the amount of costs of Rs.5000/- to the plaintiff. After considering the submissions of the learned counsel for the parties, I am of the opinion that interest of justice will meet in case the ex-parte order passed against the defendant-petitioner is set-aside and further he is granted 15 days time to file written- statement on payment of costs of Rs.5,000/- for which the learned counsel for the petitioner has agreed. Consequently, the writ petition is allowed. The impugned orders dated 2nd November, 2006, 16th April, 2007 and 17th May, 2007 passed by the trial court are set-aside. The defendant-petitioner is permitted to file his written-statement within a period of 15 days from today on payment of costs of Rs.5,000/-, which will be paid at the time of filing of the written-statement in the trial court failing which the written-statement will not be taken // 4 // on the record and the suit will proceed ex- parte and this writ petition will be deemed to have been dismissed automatically. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman//