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Himachal Pradesh High Court · body

2019 DIGILAW 732 (HP)

Purushotam Lal v. Ramesh Chand

2019-06-18

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioners have prayed for setting aside order dated 01.12.2018, passed by the Court of learned Civil Judge, Court No. IV, Hamirpur in CMA No. 325 of 2017, Civil Suit No. 198/2013, vide which, an application filed by the present petitioners under Order 9 Rule 7 of the Code of Civil Procedure (hereinafter referred to as 'the Code’) for setting aside ex parte proceedings dated 30.05.2017, has been dismissed. 2. It is a matter of record that the present petitioners, who are the defendants before the learned Trial Court, were ordered to be proceeded against ex parte on 30.05.2017, when no one appeared on their behalf before the learned Trial Court. It is also a matter of record that after proceeding against the petitioners ex parte, learned Trial Court fixed the case for the purpose of ex parte arguments for 06.10.2017. It is also a matter of record that the case was not heard on 06.10.2017 and on the request of plaintiff, the same was adjourned for the purpose of arguments for 29.12.2017 and on the said date, an application under Order 9 Rule 7 of the Code stood filed by the present petitioners praying for setting aside of order dated 30.05.2017 vide which they were proceeded against ex parte. Said application was dismissed by the learned Trial Court, inter alia, by holding that the same was filed beyond the period of 30 days and the same was not supported by an application praying for condonation of delay. 3. I have heard learned counsel for the parties. 4. What weighed with the Court while dismissing the application, as already mentioned above, is the fact that there was no prayer for condonation of delay in filing the application under Order 9 Rule 7 of the Code. In my considered view, learned Trial Court has adopted a slightly hypertechnical attitude while dealing with the application. It can not be said that there was an inordinate delay on the part of the petitioners in filing the application for setting aside the ex parte order. As I have already mentioned above, on 30.05.2017 after proceeding against the petitioners as ex parte, learned Trial Court had ordered the listing of the case for ex parte arguments for 06.10.2017. It can not be said that there was an inordinate delay on the part of the petitioners in filing the application for setting aside the ex parte order. As I have already mentioned above, on 30.05.2017 after proceeding against the petitioners as ex parte, learned Trial Court had ordered the listing of the case for ex parte arguments for 06.10.2017. No arguments took place on the said date and the case was adjourned for 29.12.2017 and on the said date, an application was filed by the present petitioners for setting aside the ex parte order. Learned Trial Court could have given an opportunity to the present petitioners to file an application under Section 5 of the Limitation Act and had the present petitioners failed to avail the opportunity, then learned Trial Court could have had passed appropriate orders on the application filed under Order 9 Rule 7 of the Code. But, simply because the application was filed beyond the period of 30 days and there was no application accompanying the same praying for condonation of delay, the Court should not have adopted a hypertechnical approach, because it is settled position of law that procedure is the handmaiden of justice and the purpose of the procedure is to further the cause of justice and not to create hurdles in the course of delivery of justice. Accordingly, this petition is allowed. Impugned order dated 01.12.2018, vide which an application filed by the petitioners under Order 9 Rule 7 of the Code was dismissed, is set aside. Order dated 30.05.2017 vide which the petitioners/defendants were ordered to be proceeded against ex parte is recalled. The petitioners/defendants are permitted to join the proceedings in the Civil Suit. This is subject to the petitioners’ paying cost to the tune of Rs.10,000/- to the respondent/plaintiff. 5. This Court has been informed that the petitioners/defendants before the learned Trial Court have to lead their evidence. It is clarified that learned Trial Court shall give one opportunity to the petitioners/defendants to lead their evidence and for this purpose, Court Assistance shall also be permitted. If after grant of such opportunity, the petitioners fail to lead their evidence, then no further opportunity shall be granted by the learned Court below. It is clarified that learned Trial Court shall give one opportunity to the petitioners/defendants to lead their evidence and for this purpose, Court Assistance shall also be permitted. If after grant of such opportunity, the petitioners fail to lead their evidence, then no further opportunity shall be granted by the learned Court below. These directions, but natural, are subject to the factum of the cost being paid by the petitioners to the respondent on the next date of hearing by way of a Demand Draft. Learned Trial Court is further directed to make an endeavour to decide the Civil Suit as expeditiously as possible. 6. Parties through counsel are directed to appear before the learned Trial Court on 22nd July, 2019. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.