CR No. 5230 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: May 06, 2009 Civil Revision No. 5230 of 2008 (O&M) Malkiat Singh .. Petitioner v. Darshan Singh and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Vivek Verma, Advocate for the petitioner. Mr. Kashmir Singh, Advocate for respondents No. 1 to 3. ... Rajesh Bindal J. Challenge in the present petition is to the order dated 22.7.2008, passed by the learned court below, whereby the application filed by the petitioner- defendant no. 1 for setting aside order dated 2.12.2004 proceeding him ex-parte, was dismissed on the ground of delay. Learned counsel for the petitioner submitted that out of three defendants, one of them, namely, defendant No. 3- mother of the petitioner, had expired. He further submitted that after the petitioner was proceeded against ex parte on 2.12.2004, no effective proceedings have taken place. In fact, the ex- parte evidence of respondents No. 1 to 3-plaintiffs was closed on 18.1.2005 and thereafter the case was being adjourned on their request for arguments. On 7.10.2005, the learned court below after noticing the fact that the suit filed by respondents No. 1 to 3-plaintiffs was for possession by way of specific performance of agreement to sell dated 9.12.1982 and the requisite court fee had not been paid, were directed to affix the court fee, which was paid only on 19.1.2006. Thereafter, on 6.2.2006, respondents No. 1 to 3-plaintiffs filed application under Order 6 Rule 17 CPC for amendment of the plaint, which remained pending till 10.3.2008, whereas prior thereto the petitioner-defendant No. 1 had already filed application for setting aside of ex-parte order on 11.10.2007. The submission is that once the application of respondents No. 1 to 3- plaintiffs for amendment of the plaint is allowed, the proceedings in the suit will start afresh and as such respondents No. 1 to 3 -plaintiffs will not suffer any CR No. 5230 of 2008 [2] prejudice. Even otherwise, if the application is not allowed, the petitioner- defendant No. 1 is willing to join the proceedings at the stage where the suit is. On the other hand, learned counsel for respondents No. 1 to 3- plaintiffs submitted that the petitioner was watching the proceedings in the suit by sitting at the fence. He was well aware of the proceedings against him. The application was filed nearly 3 years after the passing of the ex-parte order without there being any explanation for the intervening period. The application does not deserve to be allowed at this belated stage. After hearing learned counsel for the parties and perusing the paper book, especially various zimni orders passed by the learned court below since 18.1.2005 till date, it is evident that inspite of the fact that petitioner-defendant No. 1 was proceeded against ex-parte on 2.12.2004, ex-parte arguments were not addressed by respondents No. 1 to 3-plaintiffs and repeated adjournments were sought. Thereafter, when the court found that respondents No. 1 to 3-plaintiffs had not affixed the court fee, opportunity was granted to them, for which again number of adjournments were sought after 7.10.2005 till 19.1.2006, when the court fee was affixed. Immediately thereafter, application for amendment of the plaint was filed by respondents No. 1 to 3-plaintiffs and during the pendency thereof, application was filed for setting aside the ex-parte proceedings. In view of the aforesaid factual position, in my opinion, no prejudice as such will be caused to respondents No. 1 to 3-plaintiffs, in case the petitioner is permitted to join the proceedings at the stage where the suit is. Accordingly, the impugned order, passed by the learned court below, is set aside, subject to payment of Rs. 2,000/- as costs to respondents No. 1 to 3-plaintiffs. The petitioner may now put in appearance and proceed further with the case at the stage it is. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 6.5.2009 mk