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Himachal Pradesh High Court · body

2016 DIGILAW 2091 (HP)

HPSIDC v. Shivalik Video Communication (O) Ltd.

2016-09-28

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. 1. This application has been filed with a prayer to set aside order dated 24th August, 2016 and restore OMP (M) No. 4014 of 2013 & OMP No.4241 of 2013, filed in Civil Suit No. 37 of 1998, to its original number. 2. The facts giving rise in filing of this application in a nut-shell are that Civil Suit No.37 of 1998 filed by the Non-applicant/plaintiff was decreed on 21.8.2001. The application OMP No.4241 of 2013 was filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree and restoration of the suit to its original number and file. OMP (M) No.4014 of 2013 was filed under Section 5 of the Limitation Act with a prayer to condone the delay as occurred in filing the application for setting aside the exparte decree. Both the applications right from the date of institution remained listed for consideration, however, ultimately came to be dismissed for want of prosecution initially vide order dated 5.10.2015. Order passed in these applications on that day, reads as under:- ? The application registered as OMP No. 4241/2013 has been filed with a prayer to set aside the exparte decree passed against applicant-defendant No.2. the another application registered as OMP (M) No.4014/2013 has been filed for condonation of delay as occurred in filing the application OMP No.4241 of 2013. Both the applications are listed today for filing rejoinder. These applications were passed over in the pre-lunch session as there was no appearance on behalf of applicant-defendant No.2. when recalled in the post lunch session, there is again no appearance on behalf of the applicant-defendant No.2. Both applications, therefore, are dismissed for want of prosecution. Pending application (s), if any, shall also stand disposed of.? 3. Anyhow on an application registered as OMP No. 336 of 2015, this Court has quashed the order dated 5.10.2015 and both the applications were restored to its original number vide order passed on 24.11.2015. The applications thereafter remained listed for consideration before this Court on different dates, however, again came to be dismissed for want of prosecution vide order dated 24.8.2016, which reads as follows:- ?This matter was called in the pre-lunch session, however, when no one has put in appearance, was passed over. It is called again in the post-lunch session. The applications thereafter remained listed for consideration before this Court on different dates, however, again came to be dismissed for want of prosecution vide order dated 24.8.2016, which reads as follows:- ?This matter was called in the pre-lunch session, however, when no one has put in appearance, was passed over. It is called again in the post-lunch session. Again there is no appearance on behalf of the applicant-defendant No.2. It is seen that these applications were dismissed for want of prosecution previously also vide order dated 5.10.2015. However, vide order passed on 24.11.2015 in OMP No.336 of 2015, the same were restored to its original number and file. As already recorded, today also no one has put in appearance on behalf of the applicant-defendant No.2. Being so, both the applications are dismissed for want of prosecution. Pending application (s), if any, shall also stand disposed of.? 4. Now this application came to be filed with the prayer to set aside the exparte order passed on 24.8.2016. The only explanation qua absence of the applicant-defendant No.2 and learned counsel representing him is that inadvertently and under wrong belief, learned counsel was under the impression that the applications were adjourned to 7.9.2016 instead of 24.8.2016. The explanation so set forth is neither reasonable nor plausible for the reason that both applications were adjourned to 24.8.2016, as per order passed on 9.8.2016 in the presence of learned counsel representing applicant-defendant No.2. Being so, there is no question of the counsel was under wrong impression and belief that the applications were adjourned to 7.9.2016. Keeping in view the past conduct of the applicant i.e. dismissal of both applications on two occasions and on one occasion this Court, after taking lenient view of the matter had set aside the exparte order passed on 5.10.2015 and restored the application (s) to its original number. However, the application (s) came to be dismissed in default again on 24th August, 2016. The applicant-defendant No.2 and learned counsel representing him were therefore, negligent in pursuing these applications throughout. In such a peculiar situation allowing the application and setting aside the dismissal would be nothing but a misplaced sympathy having no place in our legal system. Support in this regard can be drawn from the judgment of the apex Court in Shanti Devi & Others versus Kushaliya Devi, reported in JT 2015 (8) SC 577. 5. In such a peculiar situation allowing the application and setting aside the dismissal would be nothing but a misplaced sympathy having no place in our legal system. Support in this regard can be drawn from the judgment of the apex Court in Shanti Devi & Others versus Kushaliya Devi, reported in JT 2015 (8) SC 577. 5. Irrespective of the observations hereinabove, otherwise also, the applicant defendant No.2 throughout the proceedings in the applications OMP (M) No.4014 of 2013 and OMP No.4241 of 2013 had been pursuing the matter for the purpose of amicable settlement. Reference in this regard can be made to the following orders passed on 21.7.2014:- ? The learned counsel for the defendant No.2 has handed over a draft of Rs. 2,42,800/- which is accepted and acknowledged by the learned counsel for the plaintiff. It is jointly represented by the learned counsel for the parties that the case be now listed after two months so as to enable the parties to explore the possibility of one time settlement. List on 25.9.2014.? 6. Thereafter also both applications remained listed for exploring of possibility of amicable settlement. This Court is apprised that execution proceedings are pending in the Court of learned District Judge, Chandigarh. Applicant-defendant No.2, if so advised, may approach learned Executing Court for amicable settlement during the course of execution proceedings, however, so far as this application is concerned, there is no merit in the same and the same is accordingly dismissed.