Allowed

Basant Singh Rathaur v. Hp Housing Urban Dev .Authority

Himachal Pradesh HC15 May 2013CR/65/2013

Case brief

AI extract

What is this about?

This revision petition challenges an order dismissing an application to set aside an ex-parte decision due to the petitioners' absence. The High Court allowed the setting aside of the order, granting one opportunity to examine a witness upon payment of costs.

What did the court decide?

Set-aside of the impugned order; one opportunity granted to examine witness Tarlok Singh Rathaur on payment of costs Rs. 1,000/-; appearance date fixed for 31.05.2013.

Basant Singh Rathaur Vs Hp Housing… — Civil Procedure and Limitation | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Civil Revision No.65 of 2013.

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Date of decision: 15.05.2013.

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Basant Singh Rathaur & another.

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…..Petitioners/Defendants.

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Versus

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Himachal Pradesh Housing & Urban Development Authority & another.

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….Respondents/Plaintiffs.

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Coram

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The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?¹ No

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For the Petitioners : Mr.Virender Rathore, Advocate.

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For the Respondents : Mr.Raman Sethi, Advocate.

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Kuldip Singh, Judge (Oral).

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CMP No.601 of 2013.

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Allowed. The documents filed with the application are

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taken on record.

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Civil Revision No.65 of 2013.

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2 This revision is directed against the order dated 02.03.2013 passed by learned Civil Judge(Junior Division), Court No.6, Shimla, in Case No.196-1 of 10/07. It has been submitted by learned counsel for the petitioners that respondents have filed a suit for recovery of Rs.76,771.76/- against the petitioners and petitioners have also filed a counter claim claiming Rs.1,19,610/- from the respondents. The counsel representing the petitioners in the Court below had wrongly

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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noted the date and, therefore, petitioners and his counsel did not appear on 16.11.2012 in the Court below. The absence of the petitioners and his counsel was neither intentional nor willful. The petitioners thereafter moved an application for setting aside ex-parte order which has been dismissed.

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The learned counsel for the respondents has submitted that petitioners were given eight opportunities for leading their evidence, but they failed to adduce the evidence and on 29.10.2012 the Court had passed the order that incase the petitioners would not produce the evidence on the next date, then their evidence shall be deemed to have been closed. On 29.10.2012, the Court had fixed 16.11.2012 for the evidence of the petitioners. It has been submitted by learned counsel for the respondents that order dated 29.10.2012 has not been assailed by the petitioners.

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In the application for setting aside order dated 16.11.2012, it has been stated that the counsel representing the petitioners in the Court below had not noted 16.11.2012 date in his diary nor this date was within the knowledge of the petitioners and, therefore, they could not appear on 16.11.2012. The respondents have denied this stand of the petitioners.

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It is admitted case of the parties that respondents have filed a suit for recovery of Rs.76,771.76/- and petitioners have filed a counter claim for Rs.1,19,610/-. On 29.10.2012, the Court had given last opportunity to the petitioners to adduce their evidence with further rider that their evidence shall be deemed to have been closed in case they failed to produce the evidence. The petitioners were not to gain anything by not putting appearance on 16.11.2012 in the Court below.

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The obvious result of the absence of the petitioners was that the evidence led by the respondents in the suit would go unrebutted and the counter claim put-forward by the petitioners would remain unproved. In these circumstances, the stand of the respondents cannot be wholly rejected that their absence on 16.11.2012 in the Court below was not bonafide.

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The learned counsel for the petitioners has submitted that they will examine only Tarlok Singh Rathaur in the Court below in the suit filed by the respondents as well as in support of their counter claim. Therefore, in the interest of justice the impugned order is set-aside. The petitioners are given only one opportunity to examine Tarlok Singh Rathaur in the suit as well as in the counter claim subject to payment of cost of Rs.1,000/-, which shall be paid in the Court below. The parties are directed to appear in the Court below on 31.05.2013. On that date, the learned trial Court shall fix the date for examination of petitioners’ witness Tarlok Singh Rathaur in the suit as well as in the counter claim.

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In view of above, present petition is disposed of, so also the pending application, if any.

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May 15, 2013. (krt)

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( Kuldip Singh), Judge.

Basant Singh Rathaur v. Hp Housing Urban Dev .Authority

Case brief

What is this about?

What did the court decide?

Basant Singh Rathaur v. Hp Housing Urban Dev .Authority

Case brief

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What did the court decide?

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