Surinder Nath vs Baba Inder Singh

V.S. Aggarwal, J.—The present revision petition has been filed by Surinder Nath (hereinafter described as the petitioner) directed against the order of the learned Additional Senior Subordinate Judge, Amritsar dated October 5, 1991. By virtue of the impugned order, the learned trial Court dismissed the application filed by the petitioner under Order 9 Rule 7 CPC for setting aside the ex parte proceedings vide the order dated April 2, 1991.

The relevant facts are that on April 2, 1991, the petitioner was proceeded ex parte. He submitted an application for setting aside of the said order alleging that he is an old and infirm person and has been suffering from serious chest trouble. His age is about 85 years. On April 2, 1991, due to his illness, he could not appear in Court, nor inform his counsel about his sickness. Therefore, he prayed that ex parte proceedings against him be set aside.

The said application had been opposed. Respondent''s claim was that the petitioner had intentionally absented himself on April 2, 1991 and he is only adopting dilatory tactics.

The learned trial Court looked at the past conduct of the petitioner and held that these are dilatory tactics being adopted by the petitioner. Even the costs were not paid and with these findings, dismissed the application. Ag- grieved by the same, the present revision petition has been filed.

Perusal of the facts shows that on the date the petitioner was sick, even medical certificate has been appended. The petitioner could not inform his counsel and thus, the costs even were not paid on the date fixed. Ordinarily, if there were reasons beyond the control of the petitioner, the petitioner in these circumstances could not inform his counsel, but submitted an application subsequently. Admittedly, the petitioner is an old man. As pointed above, on the relevant date, he was unwell. Keeping in view these factors, the past conduct does not assume much importance. It is fit case where ex parte proceedings must be set aside, but on payment of Rs. 500/- as costs.

For these reasons, the impugned order is set aside. Instead, the application filed by the petitioner is allowed. The ex parte proceedings against the petitioner are set aside on payment of Rs. 500/- as costs.