1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION No.6007/2007 Hafiz Mohammed Sabir v/s The Civil Judge (Junior Division) 1st Class (South) Kota & Anr. DATE OF ORDER ::: SEPTEMBER 2nd, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Shailesh P. Sharma, for defendant / petitioner. Shri Rajveer Sharma, for plaintiff / respondent No.2. BY THE COURT : 1. At the request of the learned counsel for the parties, the arguments were heard and writ petition is being disposed of finally. 2. The defendant/petitioner has preferred this writ petition challenging the impugned order dated 7.5.2007 (Annexure 6) passed by the learned Civil Judge (Junior division), First Class (South), Kota, whereby an application filed by the defendant/petitioner for setting aside the exparte order, has been dismissed. 3. The submission of the leaned counsel for the defendant/petitioner is that 2 although the summon on defendant was not served upon him personally, but service was treated as complete on the basis of report of process server to the effect that defendant refused to accept the summon, but he moved an application within 18 days itself i.e. on 4.8.2005 for setting aside the exparte order dated 18.7.2005, therefore, looking to all the facts and circumstances of the case, the application filed by the petitioner, ought to have been allowed. 4. Learned counsel for the plaintiff/respondent No.2. Contended that the conduct of the petitioner with the process server in the present case, was not proper and he refused to accept the notice and he did not allow to paste the notice, therefore, the petitioner has no sympathy at all to get exparte order, set aside in the facts and circumstances of the case. In the alternative, he contended that if this court is inclining to set aside the exparte order, then a heavy cost upon the petitioner, be imposed 5. Learned counsel for the petitioner has no objection in imposing the 3 reasonable amount of costs while setting aside the exparte order passed against him. 6. I have considered the submissions of the learned counsel for the parties. 7. From the impugned order, it is clear that defendant/petitioner, not only refused to accept the notice but did not allow the same to be pasted. The trial court has also observed that when exparte order was passed, the same was got served on the defendant with the help of police. From all the facts and circumstances of the case, it is clear that the conduct of the petitioner was not fair with the process server of the court but this fact cannot be ignored that in the present case, application was filed within 18 days itself. The right to contest the suit is an important and valuable right of the defendant. Now, the defendant itself has come in the court, therefore, it would have been more better on the part of the trial court to allow the defendant to contest the suit, by setting aside the exparte order. So far as the imposition of costs is concerned, I am satisfied that it is a fit case to impose the reasonable amount of costs while setting aside the 4 exparte order against the petitioner. 8. Consequently, the writ petition is allowed. The impugned order dated 7.5.2007 passed by the trial court is set aside and consequently the exparte order passed on 18.7.2005 is also set aside. The petitioner will pay a sum of Rs.2,000/- (two thousand) towards costs to the plaintiff-respondent No.2 within a period of 30 days, failing which the application of the petitioner for setting aside the exparte order, will be deemed to have been dismissed. The petitioner is permitted to defend the suit 9. Learned counsel for the respondents contended that the suit is pending since 2005, therefore, the time limit be fixed for the petitioner to file his written statement so suit may not be delayed further. The prayer appears to be reasonable, the defendant/petitioner is allowed 30 days time from today to file the written statement, failing which the written statement will not be taken on record. (Narendra Kumar Jain), J. chauhan/