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Judgment
C.Y. Somayajulu
Order dated 17-7-2004 passed by the second respondent is questioned in this petition on the ground that petitioner was not served with due notice of hearing.
The contention of the learned Counsel for the petitioner is that since the petitioner, by the notice in Lr.No. 38/1/3/120, dt. 14-7-2004, was directed to appear before the second respondent either in person or through counsel, without mentioning the date of appearance and since that notice in fact was received by the petitioner on 20-7-2004 and since second respondent passed the order impugned on 17-7-2004 itself, the same is vitiated and is liable to be set aside.
The contention of the learned Counsel for the first respondent is that since the order impugned lists out the various dates to which the case was adjourned at the behest of the petitioner i.e. from 28-8-2003 to 22-12-2003, to 5-1-2004, to 24-1-2004, to 16-2-2004, to 22-3-2004 and 17-5-2004 it is clear that petitioner does have knowledge of the proceedings and since it did not file counter in spite of those adjournments, petitioner cannot be heard to say that he had no notice of the proceedings.
On the ground that petitioner failed to submit statement of defence and had failed to appear in person or through counsel, second respondent, when it decided to proceed ex parte, ought not to have issued the notice dated 14-7-2004 in Lr.No. 38/1/3/120 to the petitioner for its appearance either in person or through authorized person without mentioning the date for such appearance. Since fresh notice for appearance was issued it should be deemed that second respondent decided to afford a fresh opportunity of being heard to the petitioner ignoring the earlier decision to proceed ex parte. Since notice dated 14-7-2004 was issued to the petitioner by the 2nd respondent with a direction to appear before it, without fixing a date for such appearance, its passing the order impugned even before the said notice reached the petitioner is against the principles of natural justice and so the same is liable to be set aside and hence is set aside.
Since petitioner was given ample opportunity for filing its reply, while allowing the writ petition and setting aside the order impugned, by making the Rule Nisi Absolute, petitioner is directed to file its counter or reply, if any, within one month from to-day in case No. 38/1/3/120 which shall be disposed of by the 2nd respondent, as expeditiously as possible, at any rate within two months of the time granted to the petitioner for filing its counter. The amount deposited by the petitioner in pursuance of the interim order shall lie with the Court in which it is deposited till disposal of the case by the second respondent. No costs.