Partly allowed

Hanuman Sahai S/O Shri Ramkishore v. Hanuman Sahai S/O Shri Prabhudayal

Rajasthan HC6 Aug 2024CW/9301/2024

Case brief

AI extract

What is this about?

The High Court exercised writ jurisdiction to grant the petitioner a further opportunity to deposit costs required to make operative the trial court's order setting aside an ex-parte decree. The Court quashed the impugned order of the trial court and directed the trial court to proceed with the suit on merits after compliance.

What did the court decide?

Impugned order dated 07.02.2024 quashed; petitioner granted four weeks to deposit total cost of Rs. 20,000/- to revive restoration of suit.

Hanuman Sahai S/O Shri Ramkishore Vs Hanuman Sahai S/O… — Quashing and FIR | Rajasthan HC (2024)

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[2024:RJ-JP:33541]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 9301/2024

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Hanuman Sahai S/o Shri Ramkishore, Aged About 48 Years, R/o Village Bawari Jarunda, Tehsil Jamwaramgarh District Jaipur (Raj.).

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----Petitioner

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Versus

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Hanuman Sahai S/o Shri Prabhudayal, Aged About 48 Years, R/o Village Bawari Jarunda, Tehsil Jamwaramgarh District Jaipur (Raj.).

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----Respondent

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For Petitioner(s) : Mr. Ram Prasad Sharma for Mr. Prahlad Sharma For Respondent(s) : Mr. Abhishek B. Sharma

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HON'BLE MR. JUSTICE SUDESH BANSAL Order

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06/08/2024

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Instant writ petition has been listed in orders category, however, with the consent of counsel for both the parties, writ petition has been heard finally on merits.

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It appears that a civil suit for specific performance of contract and permanent injunction bearing Civil Suit No.25/2021 was filed by respondent-plaintiff which was decreed vide judgment dated 04.05.2022 by the District Judge, Jaipur in his favour and against the petitioner-defendant in ex-parte in following terms:-

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“12. परिणामतः उपिो्ሹ ववय़वय़िचनानासाि वय़ाददቾ का वय़ाद ववय़रू्ቍ ्ቚवतवय़ाददቾ ቻ᮪ाቻ᮪तद

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स व वय़दा क ववय़वनवदि्ቖ अनापालना वय़ स ाायदቾ वनषिेधााजा सक़ॕायाय एकपሹቊदቾाय रुप सि वनᯁᮽन्ቚ काि सि वडय़क वकाया ቚाता हत:

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्ቚवतवय़ाददቾ, वय़ाददቾ सि ववय़काय इकिािनामा वदनावक 18-03-2021 (्ቚदरि.1) क पालना मम ቻ᮪कााया ववय़काय ्ቚवतफल िावर 80,000/- (अससदቾ ह ቚाि) रुपायि ्ቚा्቎ कि, इकिािनामा ्ቚदरि. 1 मम वय़वणित ቚाायदाद का दो माह क अवय़वेध मम वय़ाददቾ कि हक मम ववय़काय प्ቔ पव ቚदቾकतत किावय़ि त ा वय़ाद्ቇसत सᯁᮽपवᮕⓤ का कቓቡ ቚा वय़ाददቾ को सवभलावय़ि। ्ቚवतवय़ाददቾ ᯝᮡािा उ्ሹ अवय़वेध मम वय़ाददቾ कि पሹቊ मम ववय़काय प्ቔ पव ቚदቾकतत किवय़ानि मम असफल िहनि पि, वय़ाददቾ नायाायालाय कि माधायम सि ववय़काय प्ቔ पव ቚदቾकतत किवय़ानि का अवेधकािदቾ हो५ቐा। ववय़काय प्ቔ पव ቚदቾायन का खचाि वय़ाददቾ वय़हन किि५ቐा।

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्ቚवतवय़ाददቾ को ቚरिायि स ाायदቾ वनषिेधााजा पाቻ᮪वद वकाया ቚाता हत वक वय़ह इकिािनामा्ቚ दरि.1 मम वय़वणित सᯁᮽपवᮕⓤ को वय़ाददቾ कि अवतरि्ሹ वकसदቾ अनाय को वकसदቾ ्ቚकाि सि ववय़काय,

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अनतरित,, भारित नहं किि।

[2024:RJ-JP:33541]

[CW-9301/2024]

(2 of 3)

तदद नासाि वडय़क पचाि ततायाि हो।"

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Thereafter, it appears that petitioner-defendant moved an application under Order 9 Rule 13 CPC to set aside ex-parte judgment and decree which was allowed vide order dated 18.01.2023 subject to payment of cost of Rs.10,000/- to the respondent-plaintiff. However, it appears that petitioner-defendant could not make payment of the cost within the prescribed time. Then petitioner moved an application in December, 2023, seeking permission to deposit the cost but same has been dismissed vide order dated 07.02.2024, which is impugned herein, in the instant writ petition.

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Counsel for respondent-plaintiff does not dispute that the decree dated 04.05.2022 has not been executed so far and order dated 18.01.2023, setting aside ex-parte decree was not challenged by the plaintifff.

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Taking into consideration, the nature of decree and the fact that the same was passed in ex-parte, without hearing the petitioner-defendant, which has already been set aside by the trial Court vide order dated 18.01.2023 on payment of cost of Rs.10,000/- and that order was never challenged by the plaintiff, this Court deems it just and proper to grant one more opportunity to the petitioner-defendant to make compliance of the order dated 18.01.2023 and to deposit cost of Rs.10,000/- in compliance of order dated 18.01.2023 on following terms:-

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(i) Petitioner shall pay additional cost of Rs.10,000/-, apart from the cost of Rs.10,000/- so imposed in the order dated 18.01.2023, within a period of four weeks, after restoration of the present suit

(3 of 3)

[2024:RJ-JP:33541]

[CW-9301/2024]

before the trial Court or on the date fixed by the trial Court. The costs shall be payable to the plaintiff.

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(ii) The impugned order dated 07.02.2024 is hereby quashed and set aside and order dated 18.01.2023 is made operative. (iii) After making payment of total costs of Rs.20,000/(Rs.10,000/- as per the order dated 18.01.2023 + Rs.10,000/additional cost by this court) to the plaintiff. The judgment and decree dated 04.05.2022 passed ex-parte shall be treated to be quashed and set aside, in terms of order dated 18.01.2023 and the trial Court shall proceed to decide the Civil Suit No.25/2021 on merits afresh after providing opportunity of hearing to the petitioner-defendant in accordance with law.

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(iv) In case of non-payment of cost by petitioner-defendant, it is made clear that decree dated 04.05.2022 shall stand revive and plaintiff shall be free to execute the decree.

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Instant writ petition stands disposed of accordingly.

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Stay application and/ or any other pending application(s), if any, stand disposed of.

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Copy of this Order be sent to the trial Court.

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Petitioner is directed to appear before the trial Court on 02.09.2024.

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(SUDESH BANSAL),J

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SOURAV /38

Hanuman Sahai S/O Shri Ramkishore v. Hanuman Sahai S/O Shri Prabhudayal

Case brief

What is this about?

What did the court decide?

Hanuman Sahai S/O Shri Ramkishore v. Hanuman Sahai S/O Shri Prabhudayal

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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