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W.P. No.6492 of 2008
Bhanu Pratap Pandey M.P. Housing Board.
18.8.2010
Shri Amit Garg, Counsel for the petitioners.
Shri Piyush Dharmadhikari, Counsel for the respondents.
This petition is directed against the order dated 15.4.2008
passed by learned First Civil Judge, Class-I Sidhi in Civil suit No.5-
A/2005 by which the trial Court though allowed the application
filed by the petitioners under Order 9 Rule 7 of the Code of Civil
Procedure but has not granted an opportunity to the petitioners to
file written statement. The trial Court while allowing such an
application permitted the petitioners to participate in the
proceeding without setting aside the earlier order.
Learned counsel appearing for the petitioners submitted
that though the trial Court set aside the ex parte order but has not
granted any opportunity to the petitioner to file written statement
and in the absence of written statement, it will futile to participate
in the proceedings. Submission of the learned counsel for the
petitioners is that on payment of cost one opportunity to the
petitioners be granted for filing written statement.
Shri Piyush Dharmadhikari, learned counsel appearing for
the respondents vehemently opposed the contention raised by the
petitioners. He also drew attention of this Court to the impugned
order in which it is stated that the matter remained pending
because of non-appearance of the petitioner since 2005, ex parte
order was passed on 8.9.2005 and till 14.4.2008 the trial court
remained held up because of non-appearance of the petitioners in
spite of service of notice.
From the perusal of the impugned order we find that the
trial Court though allowed the application under Order 9 Rule 7
CPC but has not set aside the order ex parte passed earlier in the
matter. For this the only reason has been assigned that it will
cause delay in the proceedings. For the delay cause, other party
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W.P. No.6492 of 2008
Bhanu Pratap Pandey M.P. Housing Board.
18.8.2010
can be compensated, but in case the petitioners are not allowed
an opportunity to file written statement this may cause a serious
prejudice to the interest of the petitioners.
In these circumstances, in the interest of justice, we allow
this writ petition in part with the following directions ;
1. The petitioners shall file written statement on or before
15.9.2010 before the trial Court along with cost. The cost is
quantified to Rs.2000/-[rupees two thousand only] payable
by the petitioners to the respondents along with written
statement.
2. If the written statement is filed alongwith the aforesaid cost
the trial Court shall take the written statement on record
and proceed further in the matter.
3. In case of non-deposit of the cost and non-filing of the
written statemnt on or before the time fixed, the earlier
order shall stand and the trial Court shall be free to proceed
in the matter.
Considering the facts and circumstances of the case, there
shall be no order as to costs to this petition.
C.C. as per rules.
(Krishn Kumar Lahoti) (J.K. Maheshwari)
JUDGE JUDGE
vj