Punjab-Haryana High Court
Inertia Industries Ltd. vs Haryana State Co-Op. Supply And ... on 2 November, 2000
Author: R.L. Anand
Bench: R.L. Anand
ORDER R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 8.8.2000 passed by the Civil Judge (Sr. Divn.), Rewari, who dismissed the application of the petitioner under Order 9 Rule 7, CPC.
2. Some facts can be noticed in the following manner :-
The Haryana State Co-op. Supply and Marketing Federation Ltd. filed amoney suit for a sum of Rs. 48,99,863/- in the year 1997, which is pending in the court of the Civil Judge (Sr. Divn J, Rewari, against the present petitioner and others. The present petitioner was earlier proceeded ex-parte on 27.11.1997. These ex-parte proceedings were set aside. The petitioner was, again, proceeded ex-parte on 3.8,1999. It may be mentioned here that so far the petitioner has not filed even the written statement in the main case. The application for setting aside the ex-parte order dated 3.8.1999 was moved after a period of about 10months,on 13.6.2000. This application was also not properly pursued and it was dismissed for wantof prosecution on 27.7.2000 as the counsel for the petitioner did not appear before the trial court. Yet another application was moved on the same date for recalling the order dated 27.7.2000 with a prayer that the petitioner may be permitted to prosecute its application under Order 9 Rule 7, CPC. This application has been dismissed vide the impugned order dated 8.8.2000, for the reasons given in para-4 of the order, which reads as under :-
"Facts in brief are that the defendant-applicants were proceeded against ex parts on 3.8.1999. An application for setting aside the above order was filed by Sh. MirnaT Kanti Mandal as applicant himself on 13.6.2000 i.e. after about 10 months.
When the above application came for hearing on 27.7.2000 Shri Mirnal Kanti Mandal, Advocate showing himself to be the applicant did not turn up and the application under Order 9 rule 7 CPC was, therefore, dismissed in default in presence of Shri Mirmal Kanti Mandal. Advocate. The present application has now been moved for setting aside order dated 27.7.2000 and taking up the application u/O 9 Rule 7 CPC for hearing. Reasons mentioned in the present application, as mentioned above, are not at all convincing, it seems that the defendants-applicants are using such tactics just to delay the proceedings in this case. This case pertains to the amount of Rs. 48,99,863/- and is pending in the court since 8.2.97. Beside this neither the present application nor the application u/O 9 rule 7 CPC dated 13.6.2000 is supported by any affidavit either of the party or of the counsel. In the absence of any affidavit on behalf of the party no truth can be attached to the facts as mentioned in this application. As per the facts on the file the defendants-applicants were proceeded against ex parte on 27.11.1997 also when the proceedings by the Hon'ble Delhi High Court were stayed in this case. The defendants-applicants were again proceeded ex parte on 3.8.1999. From the above conduct of the defendants-applicant it can well be inferred that the defendants-applicants have adopted this device just to gain time and delay the decision of this suit. I, therefore, see no substance in this application and the same is hereby dismissed."
I have beared the counsel for the petitioner and with her assistance have gone through the record of this case.
3. Counsel for the petitioner submits mat the petitioner can be burdened with costs and the petitioner cannot be penalised for the default of the lawyer, who did not appear before the trial court on 27.7.2000. According to the counsel for the petitioner, there is a good cause for setting aside the ex-parte proceedings especially when the defendant is defending a money suit in which about Rs. 49 lacs are involved.
4. After applying my mind to the contentions of the counsel for the petitioner, I am of the considered opin ion that a chance should be given to the petitioner to pursue its application under Order 9 rule 7, CPC, but the interest of the respondent-plaintiff is also supposed to be protected. This Court is of the prima facie, opin ion that the petitioner is adopting delaying tactics. The suit was instituted in the year 1997. Till today, even the written statement has not been filed. The petitionerhad been playing the game of hide and seek with the court.
Earlier, he was proceeded ex-parte. Those proceedings were set aside and, again, the petitioner was proceeded ex-parte on 3.8.1999. The application for setting aside the ex-parts order was moved after a period of 10 months. That application was, again, got dismissed on 27.7.2000.
5. In this view of the matter, the impugned order dated 8.8.2000 is hereby set aside provided the petitioner furnishes a bank guarantee of Rs. 50 lacs in the trial court within one month from today and the trial court shall decide the application under Order 9 Rule 7, CPC, filed by the petitioner for setting aside the ex-parte order dated 3.8.1999. If the bank guarantee is not furnished as stated above, the present revision shall be deemed to have been dismissed for all intents and purposes.
Copy dasti and one copy of the order be forthwith sent to the trial court for compliance.
6. Order accordingly.