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2018 DIGILAW 1046 (JHR)

Raj Kumar Sogani @ Raj Kumar Jain v. Nand Kishore Khandelwal

2018-05-10

SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Records reveal that the respondents were validly served in the year 2012 itself, however, they have yet not appeared in the present proceeding. 2. The petitioners, defendant nos.1(a), 1(b) and 1(c) in Title Suit No. 21 of 1993, are aggrieved of order dated 24.05.2012 by which the suit was set for ex-parte hearing against them and order dated 19.06.2012 by which the application seeking recall of order dated 24.05.2012 has been declined. 3. Title Suit No. 21 of 1993 was instituted for a decree for redemption of the mortgage. Petitioners are legal heirs and representatives of defendant no.1 in the suit. Defendant no.1 died on 05.09.2006 and by an order dated 22.07.2010 the petitioners were substituted in his place. The impugned order dated 19.06.2012 records that petitioners were served summons on 27.07.2011, however, they did not file additional written statement nor did they appear in the suit and consequently the suit was set for ex-parte hearing against them by the impugned order dated 24.05.2012. 4. The learned counsel for the petitioners submits that on account of death of their lawyer namely, Bhaiya Nagendra Narayan, the petitioners were not represented in the suit and affording only five days' time to them to file additional written statement, on 24.05.2012 the suit was set for ex-parte hearing against them. 5. Under Order 22, Rule 4(2) CPC legal representative of a defendant may file additional written statement, however, a substituted defendant may choose to adopt the written statement filed by the original defendant and while so on the ground that the substituted legal representative of a defendant has failed to file additional written statement, suit cannot be set for ex-parte hearing against such legal representative. No doubt, after service of summons upon them on 27.07.2011 the petitioners have not taken steps in the matter, however, they have offered a plausible explanation for such default on their part. The petitioners have pleaded that information about death of the counsel was given to them by the advocate's clerk on 02.06.2012 and they have filed the application seeking recall of order dated 24.05.2012 on 04.06.2012. In the above facts, I am of the opinion that the application under Order 9, Rule 7 CPC should have been allowed by the trial judge. In the above facts, I am of the opinion that the application under Order 9, Rule 7 CPC should have been allowed by the trial judge. This is necessary also for the reason that normally parties should be afforded opportunity to contest the suit on merits and lead best evidence; technical knockout should be avoided. 6. Thus, finding serious infirmity in the impugned orders dated 24.05.2012 and 19.06.2012 these are set-aside. The petitioners shall file their additional written statement, if any, but strictly confined to elaboration or explanation of the facts pleaded in the written statement filed by the defendant no.1 within a period of two weeks and they shall file list of witnesses, if already not filed, within 4 weeks. 7. The writ petition stands allowed in the aforesaid terms.