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2018 DIGILAW 586 (HP)

Krishnu Ram v. Shambhu Nath

2018-04-09

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J —Both these petitions are taken up for hearing and disposal together, as the dispute is inter se the same parties arising out of order dated 13.01.2016, whereby the learned Court below struck off the right of the defendants (petitioners in CMPMO No. 310 of 2016) to file written statement and order dated 09.06.2017 whereby order dated 09.11.2015, vide which defendants No. 2 and 3 (respondents No. 2 and 3 in CMPMO No. 426 of 2017) , who were proceeded against ex parte, were allowed to join the proceedings and the order dated 09.06.2017 was set aside. Thus, the petitioners in CMPMO No. 310 of 2016 seeking a direction to quash and set aside order dated 13.01.2016, whereby their right to file written statement was struck off and in CMPMO No. 426 of 2017 petitioner (plaintiff in the learned Court below) is seeking a direction to set aside order dated 09.06.2017 whereby respondents No. 2 and 3 (defendants No. 2 and 3 in the learned Court below) were allowed to join the proceedings by setting aside order dated 09.11.2015, whereby they were proceeded against ex parte. 2. The facts of the cases can tersely be summarized as under: The petitioner/plaintiff (hereinafter referred to as the plaintiff) maintained a suit for permanent prohibitory injunction restraining the defendants/respondents (hereinafter referred to as the defendants) from causing any interference, raising any construction and changing the nature of gallery/passage by digging the same in a manner blocking air, doors, windows and drainage system of the plaintiff and also dispossessing the plaintiff from land measuring 1-4 bigha, comprised in Khasra No. 155, Khata Khatauni No. 71/95, situate in Mauja Village Gochar, Pargana Baseh, Tehsil Jhandutta, District Bilaspur, Himachal Pradesh (hereinafter referred to as the suit land) , till the suit land is not finally partitioned. The plaintiff also sought relief for demolishing the construction recently forcibly raised by the defendants over the suit land during the pendency of the suit and the suit land was also sought to be put to its original position, which was existing prior to filing of the suit. The plaintiff also sought relief for demolishing the construction recently forcibly raised by the defendants over the suit land during the pendency of the suit and the suit land was also sought to be put to its original position, which was existing prior to filing of the suit. The plaintiff further averred in his petition that the suit was listed on various dates and on 24.04.2017, defendants No. 2 and 3 filed applications under Order 9, Rule 7 CPC and under Section 5 of the Limitation Act, for condoning the delay in filing the application for setting aside ex parte order dated 09.11.2015. Defendants No. 2 and 3 were proceeded against ex parte on 09.11.2015 and the case was fixed for 08.01.2016 for filing the written statement, however, on 08.01.2016 the case was not taken up and it was taken up on 13.01.2016. On 13.01.2016 counsel for defendant No. 1 appeared and the Court below closed the right of defendant No. 1 to file written statement. Defendants No. 2 and 3 maintained an application under Order 9, Rule 7 CPC, for setting aside the ex parte order dated 09.11.2015 and an application under Section 5 of the Limitation Act, was also simultaneously filed. Defendants No. 2 and 3 took a specific plea in the Court below that they did not know the ex parte proceedings before that day. 3. The learned counsel for the defendants has argued that the order passed by the learned Court below, whereby defence of defendant No. 1 was closed, is without appreciating the facts, which have come on record, and is patently wrong and illegal, as the case was listed on 08.01.2016 and it was taken up on 13.01.2016 without any notice to defendant No. 1. He has further argued that as far as ex parte order against defendants No. 2 and 3 is concerned, the defendants were not in the knowledge of that order and in fact it was mis-communicated. He has argued that in the interest of justice, the order closing the defence of defendant No. 1 be set aside and order passed by the learned Court below setting aside the ex parte order against defendants No. 2 and 3 be upheld. He has argued that in the interest of justice, the order closing the defence of defendant No. 1 be set aside and order passed by the learned Court below setting aside the ex parte order against defendants No. 2 and 3 be upheld. Conversely, the learned counsel for the plaintiff has argued that defendants No. 2 and 3 have concealed the material facts from the Court, as they were proceeded against ex parte on 09.11.2015 and when they maintained a petition before this Court, they were having knowledge that they are ex parte before the learned Court below. Defendants No. 2 and 3 concealed this fact that it was not in their knowledge that they were proceeded against ex parte. In these circumstances, order dated 09.06.2017, passed by the learned Court below, whereby order dated 09.11.2015 proceeding defendants No. 2 and 3 ex parte, was set aside, be quashed and set aside. He has relied upon a judgment of Hon''ble Co-ordinate Bench of this High Court, rendered in CMPMO No. 308 of 2016, titled as Dinesh Kumar vs. Jyoti Prakash and others. 4. In rebuttal, the learned counsel for the defendants has argued that as far as defendant No. 1 is concerned, the order passed against him is patently wrong and illegal and at least the same may be quashed and set aside. 5. In order to appreciate the rival contentions of the parties, I have gone through the records. 6. A perusal of the record shows that defendants No. 2 and 3 already knew about the ex parte order against them and they had approached the Hon''ble High Court, but this fact had been concealed from the learned Trial Court, resultantly the learned Trial Court set-aside the ex parte order against them. As far as defendant No. 1 is concerned, his defence has been closed on a date when case was not fixed for proceedings in the learned Trial Court. In these circumstances it is clear that the closing of the defence of defendant No. 1, by the Trial Court through an order, was in irregular manner and defendant No. 1 was wrongly denied to file written statement. Thus, it is a fit case where the impugned order passed against defendant No. 1 is required to be set-aisde with a direction to the learned Trial Court to allow defendant No. 1 to file his written statement. Thus, it is a fit case where the impugned order passed against defendant No. 1 is required to be set-aisde with a direction to the learned Trial Court to allow defendant No. 1 to file his written statement. At the same point of time, defendants No. 2 and 3 have concealed the material facts, thus the order setting aside ex parte order against defendants No. 2 and 3 is required to be set aside. However, as defendant No. 1 is granted one opportunity to enter his defence before the learned Trial Court, no delay will be caused even if defendants No. 2 and 3 are allowed to join the proceedings and the plaintiff will not suffer any prejudice. Therefore, the ex parte order passed against the defendants No. 2 and 3 by the learned Trial Court is ordered to be set aside subject to costs of Rs. 10, 000/- (rupees ten thousand) as defendants No. 2 and 3 have concealed the material facts. Therefore, the order of the learned Trial Court setting aside its order, whereby defendants No. 2 and 3 were proceeded against ex parte is affirmed, however, subject to payment of costs of Rs. 10, 000/- (rupees ten thousand) . 7. In view of the above the petitions are disposed of. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. Parties to appear before the learned Court below on 27th April, 2018. 8. All pending miscellaneous application(s) , if any, stand(s) disposed of.