IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CR NO.5728/2008.
Date of Decision:9.1.2009.
The Union of India and others
..........Petitioners.
Versus
Amrik Singh
..........Respondent.
CORAM: HON'BLE MR.JUSTICE JASWANT SINGH.
Present: Mr. Ram Chander,Advocate for the petitioners-defendants.
Mr. R.D. Bawa,Advocate for the respondent-plaintiff.
JASWANT SINGH,J.
Union of India and its officials-petitioners-defendants have
filed the present petition under Article 227 of the Constitution of India
praying for setting aside the order dated 17.11.2007 (Annexure P/1)
whereby ex parte proceedings have been initiated against them on account
of non-appearance on their behalf; as also order dated 23.7.2008 (Annexure
P/4); dismissing the application moved by petitioners-defendants for setting
aside the aforesaid order dated 17.11.2007 (Annexure P/1). Both these
orders have been passed by learned Civil Judge (Junior Division) Patiala.
Respondent-plaintiff Amrik Singh filed a suit for declaration to
the effect that action of the defendants, deducting an amount of Rs.23720/-
from his pay and allowances at the time of his retirement, is illegal, without
any authority and further praying for mandatory injunction directing the
petitioners-defendants to pay the said amount with interest.
It is borne out from the present revision petition that after filing
CR NO.5728/2008. 2
of the written statement, on 16.10.2006, respondent-plaintiff moved an
application for production of documents and the case was posted to
17.11.2007 for filing reply to the said application. However, nephew of
counsel for the petitioners-defendants met with an accident and was
admitted in Amar Hospital, Patiala for a major operation and as such
counsel for the petitioners-defendants could not appear before the Court on
17.11.2007 and the petitioners-defendants were proceeded ex parte. Soon
thereafter, on 22.11.2007, application (Annexure P/2) was moved by the
petitioners-defendants for recalling of the order dated 17.11.2007
(Annexure P/1), which was dismissed by the learned Civil Judge (Junior
Division)Patiala, vide impugned order dated 23.7.2008 (Annexure P/4).
Hence the present revision petition.
I have heard learned counsel for the parties and perused the
impugned orders.
Petitioners-defendants were proceeded ex parte vide order
dated 17.11.2007 on account of non-appearance of their counsel. The
petitioners-defendants have placed on record an affidavit (Annexure P/3) of
their counsel, Sh.Harjiv Singh Harika,Advocate. The reasons given by their
counsel for non-appearance are extracted below as under:-
“2.That the nephew of the deponent i.e.
counsel for the defendants met with an
accident on 16.11.2007 and he was admitted
in Amar Hospital, Patiala for a major
operation, the operation was conducted on
17.11.2007 and as such the deponent being a
CR NO.5728/2008. 3responsible family elder attended upon his
nephew on 17.11.2007 and hence could not
appear before the Hon’ble Court on the date
fixed, and was proceeded ex-parte.
3. That absence of deponent on 17.11.2007
in the Court was neither intentional nor
wilful, but was due to reasons explained
above”.
It is further not disputed that in November 2007, the claim of
the respondent-plaintiff (as raised in the civil suit) was under
process/consideration with the petitioners-defendants. Therefore, it was
suggested that no real prejudice was caused by such delay. It has also not
been disputed by the learned counsel for the respondent-plaintiff that his
evidence is yet to commence. It is well accepted that in the matter of
determination of dispute between the parties, it is the pious duty of the
Courts to hear both sides and grant adequate opportunities to adduce their
evidence. The approach adopted by the Courts must be equitable in
character and more so when the public money is involved.
In the present case, though sufficient opportunities had been
granted to the petitioners-defendants to file their reply to the application for
production of documents, however, in my opinion, the reasons given by
their counsel for his non-appearance on 17.11.2007, as reproduced
hereinabove, upon which the petitioners-defendants were proceeded ex
parte, are bona fide and thus liable to be accepted.
For the reasons stated above, the present revision petition is
CR NO.5728/2008. 4
allowed, impugned orders dated 17.11.2007 (Annexure P/1) and 23.7.2008
(Annexure P/4) are set aside, subject to payment of costs of Rs.5000/- to be
paid to the respondent-plaintiff and the trial Court is directed to proceed in
the matter in accordance with law.
9.1.2009. (Jaswant Singh) joshi Judge