W.P..No.11961 of 2010
8.9.2010
Shri Pranay Verma, Advocate for the petitioner.
This petition is directed against an order dated 13.8.2010
passed by Second Civil Judge, Class-II, Gadarwara District
Narsinghpur in Civil Suit No.4-A/2008 by which petitioner's
application under Order 9 Rule 4 and 7 read with Section 151 of
C.P.C. was rejected.
Learned counsel for the petitioner submitted that the
petitioner was proceeded ex parte on 8.7.2010 on which date the
petitioner was suffering from high fever and could not attend the
case. After recovery, the petitioner moved an application before
the Trial Court on 23.7.2010 for setting aside ex parte order but it
has been rejected by the Trial Court.
On the perusal of the file, we find that the petitioner filed a
suit for eviction against the respondent in which the respondent
filed counter claim. On 8.7.2010 when the case was fixed for
recording of evidence, the petitioner remained absent and the case
was proceeded ex parte against the petitioner. On the adjourned
date of hearing, 16.7.2010, the case was again adjourned and on
that date, the other party submitted before the Trial Court that the
defendant is not willing to produce any evidence and the case was
fixed for final argument.. On the adjourned date i.e. 23.7.2010, the
petitioner moved an application under Order 9 Rule 4 and 7 read
with Section 151 of CPC for setting aside ex parte order which has
been rejected by the Trial Court on the ground that no
documentary evidence was produced by the petitioner in support
of his contention in respect of showing sufficient cause on that
day.
On perusal of the Order 9 Rule 7 of CPC, it is apparent that
good cause has to be assigned for setting aside ex parte order.
W.P..No.11961 of 2010
Apart from this, the petitioner was plaintiff and in absence of the
plaintiff only an ex parte order has been passed in respect of the
counter claim but the petitioner’s suit has not been dismissed by
the Trial Court. In the application of the petitioner under Order 9
Rule 7 of CPC when good cause was shown by the petitioner,
prima facie the affidavit filed by the petitioner in support of the
application ought to have been relied upon by the Trial Court
unless and until some counter is filed by the other side denying the
averments of the petitioner. In these circumstances, we find that
the Trial Court erred in rejecting the application filed by the
petitioner. Hence this petition is allowed and following directions
are issued :-
(1) The ex parte order passed against the petitioner dated
8.7.2010 is hereby set aside subject to payment of cost which we
quantify to be Rs.1000/- (Rupees one thousand) payable by the
petitioner to the other side. On payment of cost, in the Trial Court,
to the other side, the Trial Court shall set aside the ex parte order
dated 8.7.2010 and shall proceed in the matter from the stage of
the case as it was fixed on 8.7.2010.
(2) In case the cost is not deposited in the Trial Court before
the next date of hearing, the Trial Court is free to proceed in the
matter in accordance with law.
(3) As this case has been decided in the peculiar facts and
circumstances of the case without notice to the other side, liberty
is granted to the other side to seek review of this order and in that
circumstances, Shri Pranay Verma, learned counsel appearing for
the petitioner shall accept notice on behalf of the petitioner and in
that regard his Vakalatnama shall survive.
W.P..No.11961 of 2010
This petition is finally disposed of.
C.c. as per rules.
(Krishn Kumar Lahoti) (J.K.Maheshwari)
JUDGE JUDGE
DV