IN THE HIGH COURT OF JJDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.6276 of 2006. Krishnakant son of Shri Kanhaiya Lal. VERSUS Harish Chand son of Shri Govind Lal. Date of Order :::: 23/07/2009 Hon'ble Mr. Justice Dalip Singh Dr. Ram Kishan Sharma, Counsel for the Petitioner None present for the respondent, despite notice By the Court :
This writ petition is directed against the order dated 06.07.2006 by which the application dated 09.10.2003 for setting aside the order to proceed ex-parte against the defendant-petitioner dated 08.04.2003 has been dismissed.
I have perused the the impugned order and I find that while it is correct that the petitioner has moved the application after nearly six months of the passing of the order dated 08.04.2003 by which the right to file the written-statements has been refused by the learned trial Court. However, in the facts and circumstances of the present case mere delay in moving the application cannot be said to be fatal. The petitioner is an old person aged about 70-years and in case the petitioner was unwell on 08.04.2003 and could not attend the Court, the Court looking to the circumstance, as mentioned in the application could have taken a more liberal approach and afforded one opportunity to the petitioner, on costs to compensate the plaintiff, to file the written-statements, as in the present case, it could not be said that the defendant-petitioner was deliberately adopting dilatory tactics to delay the proceedings of the suit. The suit is one for permanent injunction and it is submitted by the learned counsel for the petitioner that there is already an order of permanent injunction restraining the defendant from raising constructions over the land, in dispute. Thus so far as the plaintiff is concerned the rights of the plaintiff have been amply protected by the Court by the order of the temporary injunction.
In the facts and circumstances of the present case and on the condition of the payment of costs of Rs.2,000/- to the plaintiff, it is directed that the learned trial Court would afford an opportunity to the defendant to file the written-statement on the next date, which is already fixed before the learned trial Court. The written-statement would be taken on record subject to the payment of the costs.
The writ petition is accordingly allowed. The impugned order is set aside.
The learned trial Court is directed to issue fresh notice to the plaintiff, as the plaintiff has not appeared before this Court, in case the plaintiff is in any manner dissatisfied or aggrieved by the above order, the plaintiff is at liberty to approach this Court for any modification or recalling this order.
(Dalip Singh) J.
ashok/