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2018 DIGILAW 1807 (HP)

Bhag Chand v. Parshotam

2018-10-08

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - This revision petition under Section 115 of the Code of Civil Procedure is directed against the order passed by the learned trial Court whereby it allowed the application filed by the respondent for setting aside the exparte decree and permitted him to contest the suit. 2. The petitioner-plaintiff had filed a suit for specific performance of the contract alleged to have been entered into between the parties on 01.06.2015. But the respondentdefendant was proceeded exparte on 20.07.2015 and on the basis of the exparte evidence, a decree came to be passed against him on 29.02.2016. 3. Thereafter, the petitioner filed an execution petition and it was after receipt of notice in such proceedings, the respondent came to know that he had been proceeded exparte and on the basis of which a decree had came to be passed and has now been sought to be executed. 4. In the application for setting aside the exparte decree, the applicant (respondent herein) averred that he was undergoing treatment at S.R. Hospital-Bajaura due to which he could not put in appearance in the Court and stated that neither he nor his wife has received any copy of summons and, therefore, exparte proceedings against him could not have been conducted. 5. The respondent (petitioner herein) contested the application by filing reply, wherein he denied the allegations of non-receipt of the summons and accordingly prayed for the dismissal of the application. 6. The applicant in support of his application annexed herewith the copy of medical certificate and the learned trial Court after considering the same and by holding that "sufficient cause" has liberally construed, allowed the application by setting aside the exparte decree and permitted the respondent-defendant to file written statement. 7. Aggrieved by the said order the petitioner has filed the instant petition on the ground that the learned trial court by adopting hyper technical and pedantic approach and in a haste and slip shod manner, allowed the application, which has caused prejudice to the petitioner. 8. I have heard learned counsel for the parties and have gone through the material placed on record. 9. 8. I have heard learned counsel for the parties and have gone through the material placed on record. 9. At the outset, it may be observed that the learned trial Court has not adopted a hyper technical or pedantic approach and the application cannot be said to have been decided in a haste or slip shod manner, rather its approach has been non-technical and non-pedantic and above all it has liberally construed the expression of "sufficient cause" and it is only thereafter that the application filed by the applicant (respondent herein) was allowed. If the learned trial Court below had adopted a hyper technical or pedantic approach, as alleged, then there would have been no reason why that the application would have been allowed. 10. However, nonetheless I find that while allowing the application for setting aside exparte decree, only an amount of Rs. 1000/- has been awarded as cost to the petitioner, which to my mind is grossly inadequate. Therefore, without interfering with the order on merits of the case, the present petition is disposed of by enhancing the cost as awarded in favour of the petitioner to Rs. 5000/-, which shall be paid by the respondent on or before the date as would be fixed by the learned trial Court. 11. Petition is disposed of in the aforesaid terms, so also the pending application(s), if any.