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1983 DIGILAW 707 (ALL)

Ghirrau v. Gaon Sabha

1983-09-23

KAUSHAL KISHORE

body1983
JUDGMENT Kauhsal Kishore, Member. - This revision petition has been filed by the plaintiff-revisionist in a case under Section 229-B of the U.P.Z.A. and L.R. Act-209 in which inspite of service on the defendants they absented and order for exparte hearing was passed by the court on July 19, 1977 and August 23, 1977. This order was set aside by the learned trial court on payment of costs Rs. 25/- by the order dated July 13, 1979 and a revision petition before the first appellate court was dismissed as without force. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The application for setting aside the order was made on December 20, 1979 along with affidavits of Maikoo and Ghirrau. It has been argued by the learned counsel for the applicant that the application for setting aside the order of exparte hearing could not be allowed as it was moved beyond time, there was no explanation for absence on the date fixed and no finding was recorded about the date of knowledge and the sufficiency of reasons. 4. It appears that this application has been wrongly considered to be under Order IX, Rule 7, C.P.C. The words 'as if he had appeared on the date fixed for his appearance' indicate that this rule applied when the applicant prays for a repetition of the proceedings i.e. he wants his hearing as if on the date of his absence on which the order to proceed ex parte was passed. In case the examination of witness was going on or some part of hearing was concluded already the setting aside of the order to proceed ex parte under Rule 7 means that the opportunity already lost has to be afforded again on such terms as to costs etc. on the court in its discretion decides. The present case is different. Here, the applicant/defendants before the trial court did not desire a repetition of the proceedings but only wanted their participation in future proceedings. The provision under Rule 6(1)(a) does not meant that the party is to be debarred from appearance and participation in the proceedings even for future dates. The present case is different. Here, the applicant/defendants before the trial court did not desire a repetition of the proceedings but only wanted their participation in future proceedings. The provision under Rule 6(1)(a) does not meant that the party is to be debarred from appearance and participation in the proceedings even for future dates. Otherwise, it would appear quite unjust if the party even though appearing on the subsequent dates were ordered to sit back and not participate in the proceedings just because on one single date they absented deliberately and for no good reason. This view is supported by the ruling reported in Sangram Singh v. Election Tribunal Kota, 1955 S.C.A. 545. In the present case, the trial court had even imposed costs Rs. 25/- and so the requirements of law were more than met. 5. I, therefore, find no force in this revision petition which is hereby dismissed with costs.