Himachal Pradesh High Court
Karam Chand vs Prem Sagar Marwah on 17 May, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMPMO No.179 of 2018
Decided on: 17.05.2018
Karam Chand ...Petitioner.
Versus
Prem Sagar Marwah ...Respondent.
Coram
The Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?
For the petitioner: Mr. Maan Singh, Advocate.
For the respondent: Nemo.
Sandeep Sharma, Judge (Oral) Being aggrieved and dissatisified with the order dated 26.5.2017 (Annexure P4), passed by the learned Civil Judge (Senior Division), Kullu, District Kullu, Himachal Pradesh, in CMA No.465VI/2016, whereby an application under Order 9 Rule 9 of the Code of Civil Procedure, for setting aside the exparte order, dated 21.11.2016 and restoration of the counter claim having been preferred by the petitioner ( for short 'defendant') has ::: Downloaded on - 17/05/2018 23:10:13 :::HCHP 2 been dismissed, defendant has approached this Court by way of instant proceedings, praying therein for setting aside .
the impugned orders dated 21.11.2016 and 26.5.2017 (Annexures P1 & P4).
2. Though, having carefully perused judgment dated 3.11.2016, passed in CMPMO No.289 of 2016, this Court does not find any illegality and infirmity in the impugned order, dated 26.5.2017 because admittedly this Court while deciding CMPMO No.289 of 2016, had specifically directed the defendant to remain present before the learned trial Court on 21st November, 2016, so that entire evidence led on his behalf, is recorded by the learned trial Court. Aforesaid judgment was passed subject to payment of cost amounting to Rs.5000/.
3. It is not in dispute that on 21st November, 2016 none appeared on behalf of the defendant despite repeated calls and as such, learned Court below proceeded defendant against exparte, whereafter an application under Order 9 Rule 9 of the Code of Civil Procedure, for setting aside the ::: Downloaded on - 17/05/2018 23:10:13 :::HCHP 3 exparte order came to be filed. Though, averments contained in the application, referred hereinabove, suggest .
that factum with regard to passing of judgment dated 3.11.2016, passed by this Court in CMPMO No.289 of 2016 was not in the knowledge of the defendant, but in this regard, no material was placed on record and as such,
4. to learned Court below rightly dismissed the application.
After having carefully perused the reasoning assigned in the impugned orders, this Court sees no reason to allow the prayer made in the instant petition, however, in the interest of justice and to avoid multiplication of litigation, this Court as a matter of indulgence, deems it fit to grant one more opportunity to the defendant subject to payment of cost amounting to Rs.12,000/ ,which shall be paid to the plaintiff/respondent, to whom this Court has purposely not issued notice, so that he is saved from the ordeal of engaging a lawyer in this Court for no fault of him.
5. Consequently, in view of the above, the present petition is allowed and orders dated 21.11.2016 and ::: Downloaded on - 17/05/2018 23:10:13 :::HCHP 4 26.5.2017 ( Annexures P1 & P4) are quashed and set aside. The defendant is directed to remain present before .
the learned trial Court on 11 th June, 2018, on which date, evidence, if any, on behalf of the defendant shall be examined. Needless to say, no further opportunity would be granted to the defendant and in the event of his failure to lead evidence on the given date, his defence shall be deemed to have been struck of. Pending application(s), if any, also stands disposed of.
Copy dasti.
( Sandeep Sharma) Judge May 17, 2018 ( shankar ) ::: Downloaded on - 17/05/2018 23:10:13 :::HCHP