Partly allowed

Harnam Singh v. Kala Devi and Ors.

Punjab & Haryana HC22 Apr 2009CR/2417/2008

Case brief

AI extract

What is this about?

Single Judge High Court set aside a lower court's order dismissing a petitioner's application to set aside an ex parte decree. The court held that a clerical error in the hearing date noted as to 5.5.2007 instead of 5.2.2007, coupled with a pending amendment application, justified re-hearing the petitioner, subject to paying Rs. 5,000 costs.

What did the court decide?

The impugned order dismissing the application to set aside the ex parte order was set aside; petitioner directed to pay Rs. 5,000 as costs to respondent.

Harnam Singh Vs Kala Devi and Ors. — Civil Procedure and Limitation | Punjab & Haryana HC (2009)

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CR No. 2417 of 2008 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 2417 of 2008 (O&M) Date of decision: 22.4.2009

Harnam Singh

.. Petitioner

Vs.

Kala Devi and another

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.. Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. Sanjeev Kumar Panwar, Advocate for the petitioner.

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Rajesh Bindal J.

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Service of respondent No. 1 in the present case was effected through her counsel in the trial court for 14.1.2009. However, no one appeared. The case was adjourned to 4.3.2009 and thereafter for today. However, still respondent No. 1, the contesting respondent, remained unrepresented. While issuing notice of motion on 25.4.2008, further proceedings before the trial court were stayed, which means otherwise also respondent No. 1 has knowledge of pendency of the present proceedings. Accordingly, the petition is taken up for hearing ex parte.

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Challenge in the present petition is to the order dated 7.4.2008, passed by the learned court below, whereby the application filed by the petitionerdefendant No. 1 for setting aside of ex parte order dated 5.2.2007, was dismissed.

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Briefly, the facts are that in a suit for declaration filed by respondent No. 1, the petitioner was proceeded against ex parte on 5.2.2007 and the case was adjourned to 19.5.2007 for ex parte evidence of respondent No. 1. However, on that date, the petitioner-defendant No. 1 filed application for setting aside of exparte order claiming that he had noted wrong date of 5.5.2007 as against 5.2.2007. The cause shown by the petitioner-defendant No. 1 having not been found to be justifiable, the learned court below dismissed the application for setting aside of ex parte order, which is impugned in the present petition.

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CR No. 2417 of 2008 [2]

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Learned counsel for the petitioner submitted that it was on account of inadvertent error that the date of hearing was wrongly noted, on account of which the petitioner could not appear in Court on the date fixed and immediately on the next date, when he came to know about the ex parte order, application for setting aside the same was filed. As the earlier counsel had not taken proper care of the case of the petitioner, even the counsel was also changed. The case was at the very initial stage as even the date on which the impugned order was passed, respondent No. 1-plaintiff had filed an application for amendment and the case was adjourned for consideration thereof. He further submitted that for any inconvenience caused to respondent No. 1-plaintiff, she can be compensated with costs.

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After hearing learned counsel for the petitioner, I find merit in the submissions made by him. The stand taken by him that it was on account of noting of wrong date that he could not appear before the court on the date fixed. The application was dismissed by the learned court below finding that the petitioner had not been able to lead evidence in the form of diary and brief of the counsel, who had noted a wrong date. However, in the process, the court failed to appreciate the fact that the petitioner had changed his counsel and the dairy and brief of the earlier counsel could not be produced for that reason. Still further, as is evident from the impugned order itself, even on the date when the application for setting aside of ex -parte order was dismissed, application for amendment of the plaint was pending consideration. Meaning thereby that the case was at the very initial stage, as no evidence of even respondent No. 1-plaintiff had been led. Even if it is considered that the petitioner was not careful enough to pursue his case, still considering the aforesaid facts in totality, in my opinion, he should not be condemned unheard and for the inconvenience caused to respondent No. 1- plaintiff, she can very well be compensated with costs.

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For the reasons mentioned above, the impugned order dated 7.4.2008, passed by the learned court below, dismissing the application filed by the petitioner for setting aside of ex- parte order is set aside subject to payment of Rs. 5,000/- as costs to respondent No. 1-plaintiff.

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The revision petition is disposed of in the manner indicated above.

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(Rajesh Bindal) Judge

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22.4.2009 mk

Harnam Singh v. Kala Devi and Ors.

Case brief

What is this about?

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Harnam Singh v. Kala Devi and Ors.

Case brief

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