Ganesh Mal Jain vs Civil Judge (Senior Division) and Others

Narendra Kumar Jain, J.—At the request of learned Counsel for the parties, the arguments were heard and writ petition is being disposed of finally.

Briefly stated the facts of the case are that applicants-respondents No. 2 to 4 filed an application u/s 6 of the Act of 1957 in the trial Court, wherein the notices were issued on 18.10.2007. The case was again listed on 05.01.2008. The applicants were present, but the notice of the non-applicant had not been received, therefore, the Court passed a fresh order to issue fresh notice to the non-applicant. Subsequently, on the basis of earlier report dt. 03.01.2008, an ex-parte order was passed against the non-applicant on 17.04.2008. The non-applicant moved an application for setting- aside the ex-parte proceedings under Order 9 Rule 7 CPC on 23.04.2008 itself. However, the said application was rejected by the trial Court on 19.05.2008. Being aggrieved with the same, the non-applicant has preferred this writ petition.

The learned Counsel for the petitioner contended that trial Court committed an illegality in not allowing the application of the petitioner, which was filed within six days itself. He contended that the trial Court, despite issuing fresh notice on 05.01.2008, relied upon the earlier report dt. 03.01.2008 while drawing the ex-parte proceedings, which was not proper.

The learned Counsel for the respondents No. 2 to 4 contested the writ petition and contended that initially the notices were issued on 18.10.2007 and non-applicant refused to accept the same, therefore, it was reported by Assistant Nazir that service is complete, however, the notice was not received by the Court in time, therefore, fresh notice was issued, whereas non-applicant had knowledge about pendency of the case. Therefore, the trial Court was right in rejecting the application of the petitioner for setting-aside the ex-parte proceedings. He alternatively contended that in case this Court allows the application of the petitioner, then at-least a reasonable amount of cost be imposed.

I have considered the submissions of learned Counsel for the parties. It appears from the impugned order that initially a notice was issued to the non-applicant/petitioner on 18.10.2007, but from the order sheet of the trial Court dt. 05.01.2008, it is clear that the said notice had not been received back till that date and fresh notice was issued to the non-applicant. Thereafter fresh notice was not served upon the petitioner, however, the earlier issued notices came back and on that basis the trial Court drew the ex-parte proceedings against the petitioner.

Looking to all the facts and circumstances of the case, I find that trial Court committed an illegality in passing the impugned order and rejecting the application of the petitioner for setting-aside the ex-parte proceedings. Once an order is passed for issuing the fresh notice on non-receipt of the earlier issued notices, then it was incumbent on the part of the trial Court to get served the fresh notice on the opposite party. The fresh notices were not served upon the petitioner. In these circumstances, I am of the view that impugned order cannot be allowed to sustain, but in the facts and circumstances of the case, I think it fit and proper to impose a cost of Rs. 2,000/-

In view of above discussions, the writ petition is allowed. The impugned order dt. 19.05.2008 passed by the trial Court is set-aside and the application filed by the petitioner under Order 9 Rule 7 CPC is allowed. The petitioner shall deposit the cost of Rs. 2,000/-, as directed above, by way of bank draft in the name of the respondent No. 2-Hukum Chand Jain in the trial Court within a period of 30 days from today, failing which the application filed by the petitioner under Order 7 Rule 9 CPC will be deemed to have been dismissed. The said bank draft will be handed over to respondent No. 2 or his counsel.

So far as this writ petition is concerned, the parties are directed to bear their own cost.