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2012 DIGILAW 212 (PNJ)

Bijilesh Devi v. Anand Prakash

2012-02-03

RAJESH BINDAL

body2012
JUDGMENT Rajesh Bindal J. 1. Challenge in the present petition is to the order dated 6.12.2010, passed by the learned court below, whereby the application filed by the petitioner for setting aside of ex-parte order dated 27.7.2009, was dismissed. 2. Briefly, the facts are that the respondent-plaintiff filed a suit on 3.6.2009 for specific performance of an agreement to sell dated 21.8.2006. After service of the petitioner-defendant, she was directed to be proceeded against ex-parte vide order dated 27.7.2009. The application for setting aside of ex-parte order was filed by the petitioner on 9.6.2010. The same having been rejected by the learned court below, the petitioner-defendant is before this court. 3. Learned counsel for the petitioner submitted that the petitioner had engaged a counsel immediately after her service, who had even filed memo of appearance in the court on the same date, i.e., 27.7.2009. Thereafter, written statement was also filed. However, he came to know about the fact that the petitioner had been proceeded against ex-parte only when he was denied opportunity to cross-examine the plaintiff's witness on 9.6.2010. There is no delay in filing the application after the order directing the petitioner to be proceeded against ex-parte came to his notice. The petitioner was not at fault as she had done whatever possibly could be in the circumstances of the case. A client is always guided by the counsel. 4. On the other hand, learned counsel for the respondent submitted that the story sought to be projected by the petitioner is false and concocted. When none had appeared on behalf of the petitioner after her service was complete, she was directed to be proceeded against ex-parte on 27.7.2009. Thereafter, the case was adjourned four times. It was only on 9.6.2010 that application was filed by the petitioner. If the story projected by the petitioner is to be believed, no such prayer was made on 26.5.2010 when PW was examined. The submission is that the story projected is an after-thought. The application has rightly been rejected by the learned court below. 5. Heard learned counsel for the parties and perused the paper book as well as the record of the court below. 6. A perusal of the record of the court below shows that the suit was filed by the respondent-plaintiff on 3.6.2009. Notice was issued to the defendant for 15.6.2009. 5. Heard learned counsel for the parties and perused the paper book as well as the record of the court below. 6. A perusal of the record of the court below shows that the suit was filed by the respondent-plaintiff on 3.6.2009. Notice was issued to the defendant for 15.6.2009. The zimni orders passed from 3.6.2009 till 9.6.2010, when the application for setting aside of ex-parte order dated 27.7.2009 was filed, are extracted below: “Order dated 3.6.2009 Suit received by assignment. It be checked and registered. Let notice of the suit be issued to the defendant for 15.6.2009 on filing of process fee, copy of plaint etc. Order dated 15.6.2009 Defendant not served. Let defendant be again summoned for 27.7.2009 on filing of copies of plaint etc. Order dated 27.7.2009 Notice to defendant received back duly served but none appeared on her behalf. It is 12.30 p.m. Defendant is proceeded against ex parte. Now, case is adjourned to 19.8.2009 for ex parte evidence. Order dated 19.8.2009 No ex parte evidence is present. Adjournment sought. Heard. Allowed. Now case is adjourned to 6.2.2010 for ex parte evidence. Order dated 4.2.2010 File taken up today as I am on training from 5.2.2010 to 16.2.2010. So case is adjourned to 26.5.2010 for same purpose already fixed. Parties/counsel/accused be informed accordingly. Order dated 26.5.2010 One PW is present and examined. No other PW is present. Date sought. Heard. Now to come up on 9.6.2010 for PWs. Order dated 9.6.2010 Case received by transfer. It be checked and registered. Ld. counsel for the plaintiff has closed his ex-parte evidence vide making a separate statement. Adjournment sought. Heard. Now to come up on 25.8.2010 for ex-parte arguments. At this stage, an application for setting aside the ex-parte order dated 27.7.2009 on behalf of defendant filed. Let notice of the application be given to opposite party/counsel for the date fixed i.e. 25.8.2010 on filing of PF.” 7. The case, as pleaded by the petitioner in the application for setting aside of the ex-parte order is that the petitioner had engaged Shri Satish Tewatia and Jugal Dagar as her Advocates. The contents of paragraph 2 of the application would be relevant, which are extracted below: “2. That in the above mentioned case, on 27.7.2009, the defendant engaged to Mr. The contents of paragraph 2 of the application would be relevant, which are extracted below: “2. That in the above mentioned case, on 27.7.2009, the defendant engaged to Mr. Satish Tewatia and Jugal Dagar and on that date on 27.7.2009 a memo was prepared before the Hon'ble Court, and thereafter a date was given as on 29.10.2009, for written statement within one month, and the said written statement was filed on dt. 4.2.2010, which was received by Civil Ahlmad on 4.2.2010 and thereafter the said case was adjourned for 6.2.2010, and again adjourned for 26.5.2010, later on the said case was adjourned for today for cross examination.” 8. Though a perusal of the aforesaid paragraph in the application shows that memo of appearance was prepared on 27.7.2009, however, the contention of learned counsel for the petitioner was that it was filed in the court. A perusal of the record of the court below shows that there is a memo of appearance on record, which is dated 27.7.2009. However, the same has not been initialled by the Presiding Officer on the date it is claimed to have been filed in the court as there is no such stamp thereon. It is further stated in the memo of appearance that vakalatnama will be produced on the next date of hearing, but the record shows that no power of attorney was produced on the next date of hearing, which was fixed as 19.8.2009. 9. In the application, further statement of the petitioner is that after 27.7.2009, the next date of hearing was given as 29.10.2009, which is contrary to the record as from 27.7.2009, the next date of hearing was fixed as 19.8.2009 and on 19.8.2009, it was adjourned to 6.2.2010. 10. If the facts stated by the petitioner in paragraph 2 of the application, as extracted above are taken on its face value and it is assumed that counsel for the petitioner had noted a wrong date as 29.10.2009 as against 19.8.2009, fixed by the court, still on 19.8.2009, the case was adjourned to 6.2.2010. The counsel would have certainly enquired about the status of the case on 29.10.2009, which was the date noted by the counsel for the petitioner in the court below. The counsel would have certainly enquired about the status of the case on 29.10.2009, which was the date noted by the counsel for the petitioner in the court below. Had it been correct, he would have certainly come to know on 29.10.2009 or immediately thereafter that he had been proceeded against ex-parte on 27.7.2009, but it was not so as the application was filed on 9.6.2010. Written statement dated nil is claimed to have been filed on 4.2.2010, which was not the date of hearing fixed in the case. Written statement is undated. Though apparently, it has been initialled by the Presiding Officer and date has been put as “4.2.2010”, however, it does not bear any stamp of filing. If the contents of paragraph 2 of the application for setting aside of the ex-parte order filed by the petitioner are perused, the same show that written statement was filed on 4.2.2010, which was received by Civil Ahlmad, whereas there is no receipt of written statement by the Civil Ahlmad. Thereafter, the case was adjourned to 6.2.2010, whereas in fact the case had been adjourned to 6.2.2010 on 19.8.2009. The falsification of the stand of the petitioner is further evident from the fact that it is claimed in the application that on 26.5.2010, the case was adjourned for 9.6.2010, when application for setting aside of ex-parte order was filed, for cross-examination, whereas the record speaks to the contrary as on 26.5.2010, one PW was present and examined. His affidavit in evidence filed in the court on that date was taken on record. Had the written statement been filed on 4.2.2010, as claimed, counsel for the petitioner-defendant would have certainly appeared in court on 26.5.2010 for cross-examination of the PW and in case he was denied that right, it would have been stated so in the application. As none had appeared for the petitioner-defendant, there was no question of cross-examination or adjournment of the case for cross-examination. The order also does not shows that. The application was filed on 9.6.2010 when the respondent-plaintiff had closed his ex-parte evidence and the case had been listed for 25.8.2010 for ex-parte arguments. 11. A perusal of the aforesaid facts establish that in fact the petitioner-defendant admitted that she had been served for 27.7.2009. The order also does not shows that. The application was filed on 9.6.2010 when the respondent-plaintiff had closed his ex-parte evidence and the case had been listed for 25.8.2010 for ex-parte arguments. 11. A perusal of the aforesaid facts establish that in fact the petitioner-defendant admitted that she had been served for 27.7.2009. The case sought to be set up for setting aside of ex-parte order dated 27.7.2009 on the basis of averments made in the application dated 9.6.2010 filed on the same date, does not show that the averments are correct as the same run contrary to the record. Had a memo of appearance been filed on 27.7.2009, the same would have certainly been reflected in the zimni order passed on that date. 12. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. 13. Before parting with the order, this court would like to direct the learned District & Sessions Judge, Faridabad to enquire into the aspect as to how a memo of appearance dated 27.7.2009 is on record before the court below, though not mentioned in the zimni order. He will also enquire into the aspect as to how a reply to the application under Order 39 Rules 1 and 2 CPC came on record on 4.2.2010, which was not the date of hearing fixed in the case and further not noticed in the zimni order. 14. Registrar General of this court is directed to get the matter examined and propose the corrective measures to be taken to avoid any such situation in future. 15. For the purpose, the matter be put up in the court on 20.4.2012.