Civil Revision No.5277 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5277 of 2003 Date of decision : 19-8-2009 M/s Rathnavel Subramaniam and others .....Petitioners VERSUS Sadhu Ram Gupta ....Respondent CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Ashish Grover, Advocate, for the petitioners. RAJIVE BHALLA, J. The petitioners challenge the orders dated 4-4-2002 and 11-8-2003, passed by the Civil Judge (Junior Division) Bathinda and District Judge, Bathinda dismissing their application for setting aside the ex parte order and ex parte judgment and decree and the order dismissing their appeal. The respondents filed a suit for mandatory injunction which was decreed ex parte on 7-4-1999. The petitioners filed an application dated 7-12-1999 praying that the ex parte judgment and decree be set aside as they were unaware of the ex parte order and the ex parte judgment and decree. The petitioners pleaded that they are residents of Coimbatore and had engaged the services of an Advocate at Bathinda but somehow did not receive information as to the ex parte order and the ex-parte judgment and decree. Civil Revision No.5277 of 2003 -2- The respondent opposed the aforementioned prayer by asserting that the application was barred by time, occasioned by culpable negligence and a mala fide attempt to delay the matter. On the basis of the pleadings, the learned trial court framed the following issues:- 1. Whether sufficient grounds exist for setting aside ex- parte judgment & decree? OPP. 2. Whether the application is within limitation? OPP. 3. Relief. After perusing the evidence adduced, the learned trial court dismissed the application by holding that the petitioners were negligent in pursuing their defence and the application was barred by time. It would be necessary to mention here that the petitioners’ advocate appeared as a witness for the respondents and deposed against the petitioners. Aggrieved by the aforementioned order, the petitioners filed an appeal. The Distt. Judge, Bathinda vide order dated 11-8- 2003 dismissed the appeal. Counsel for the petitioners submits that the petitioners are residents of Coimbatore, in the State of Kerala and were therefore entirely dependent upon their counsel to inform them about the proceedings before the trial court. On account of a misunderstanding between the petitioners and their counsel, they could not pursue their defence and were therefore, proceeded against ex parte. It is submitted that in order to show their bona fides, the petitioners have already deposited a sum of Rs.20,000/- as costs Civil Revision No.5277 of 2003 -3- as directed by this court. It is prayed that as the judgment and decree involves a monetary liability, the revision petition be allowed, the ex parte order dated 5-2-1999 and ex parte judgment and decree dated 7-4-1999 be set aside. Despite service, no one has put in appearance on behalf of the respondents to oppose the prayer in this petition. I have heard counsel for the petitioners, perused the impugned orders and am satisfied that the interest of justice would require that the suit be decided on merits and the ex parte order dated 5-2-1999 and ex parte judgment and decree dated 7-4-1999 be set aside. The petitioners may have been negligent in pursuing their defence but as their negligence is neither culpable nor mala fide, it would be appropriate that an opportunity is granted to them to put forth their defence, on merits. The petitioners admittedly are doing business at Coimbatore. They retained the services of an advocate at Bathinda but due to a misunderstanding as to the dates in the suit they were proceeded against ex parte. As their absence was neither mala fide nor culpably negligent, the courts below should have accepted the prayer for setting aside the ex parte order and the ex parte judgment and decree. In view of the above facts, the delay should have been condoned. In view of what has been stated hereinabove, the revision petition is allowed and the ex parte order dated 5-2-1999, the ex parte judgment and decree dated 7-4-1999 passed by the Civil Judge (Junior Division) Bathinda and the orders dated 4-4-2002 and 11-8- 2003 passed by the Civil Judge (Junior Division) Bathinda and Civil Revision No.5277 of 2003 -4- District Judge, Bathinda, dismissing their application, are set aside, subject to payment of Rs.20,000/- as costs already deposited by the petitioners before this court. The sum of Rs.20,000/- be transmitted to the court of Civil Judge (Junior Division) Bathinda for payment to the respondents. Parties are directed to appear before the Civil Judge (Junior Division) Bathinda for further proceedings on 5-10-2009. (RAJIVE BHALLA) 19-08-2009 JUDGE manju