CR No.7379 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7379 of 2009 Date of decision: 12.1.2011 Vinod Kumar ...Petitioner Versus Om Parkash ...Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Parminder Singh, Advocate for the petitioner Mr.Sanjiv Gupta, Advocate for the respondent *** Ram Chand Gupta, J.(Oral) The present revision petition has been filed by petitioner Vinod Kumar under Article 227 of the Constitution of India praying for setting aside order dated 13.5.2008 Annexure P-1 and order dated 1.10.2009 Annexure P-4 passed by learned Additional Civil Judge, Senior Division, Karnal, vide which the application for setting aside ex-parte proceedings against the petitioner was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned trial court. Brief facts relevant for decision of this revision petition are that suit for specific performance of contract was filed by respondent- plaintiff against the present petitioner – defendant. On notice being issued to the CR No.7379 of 2009 2 petitioner-defendant, he was served for 10.9.2007 and however, he did not appear and hence, he was proceeded against ex-parte. An application was filed on behalf of the present petitioner-defendant for setting aside the ex- parte order and the trial court set aside the same subject to payment of costs of Rs.500/- vide order dated 4.4.2008. The case was fixed for 13.5.2008. However, on that day, none appeared for applicant-defendant, nor cost was paid nor the written statement was filed. Hence, he was again proceeded against ex-parte. He filed another application for setting aside the said ex- parte proceedings, which was dismissed vide impugned order. It has been contended by learned counsel for the petitioner that he being a poor person, could not arrange the cost and hence, his counsel did not appear before the trial court on the date fixed. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that petitioner has misused the process of court. He was served for 10.9.2007, however, he did not put in appearance, nor written statement was filed and he was proceeded against ex-parte. Ex-parte proceedings were set aside subject to payment of costs of Rs.500/-. However, the costs has not been paid. Rather nobody appeared on behalf of the petitioner on 13.5.2008 and he was again proceeded against ex-parte. Hence, it is contended that after his first appearance, written statement was not filed upto a period of 8 months. It is further contended that even the witnesses summoned by the respondent-plaintiff were present on 29.10.2007. Further contended that witnesses of plaintiff were also examined in ex-parte evidence on 4.12.2009 i.e. before the filing of the CR No.7379 of 2009 3 present revision petition. Hence, it is contended that the present revision petition has been filed just to delay the proceedings. There is force in the arguments of learned counsel for the respondent-plaintiff that petitioner-defendant has misused the process of the court. He intentionally did not appear before the court despite service on 10.9.2007. On his request ex-parte proceedings were set aside subject to payment of costs of Rs.500/-. He was to appear on 13.5.2008. However, neither he appeared, nor the costs were paid. Before that, the case was fixed for 29.10.2007 when the witnesses summoned by the respondent- plaintiff were present. The evidence was also recorded in the absence of the present petitioner-defendant. Hence, in view of these facts, application filed on behalf of the petitioner-defendant was dismissed by learned Additional Civil Judge (Sr.Divn.), Karnal. Law is well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147, that in exercise of jurisdiction under Article 227 of the Constitution of India, this Court can interfere only if there is some error manifest apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. However, in the present case no such ground is available to the petitioner to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. Hence, it cannot be said that any illegality or material CR No.7379 of 2009 4 irregularity has been committed by learned trial Court while passing the impugned orders, warranting interference by this Court. The present revision petition is dismissed being devoid of any merit. January 12, 2011 (RAM CHAND GUPTA) gsv JUDGE