At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE P.S. SHAH
For the Petitioner: S.J. Deshpande, Advocate. For the Respondent: R.M. Agarwal, Advocate.
P.S. SHAH, J.
The respondents which are a private limited company have filed the suit for recovery of a sum of Rs. 16,675/- against the petitioners which are a registered partnership firm of engineers and contractors. The claim is for damages on breach of contract. The suit was filed on December 5, 1978 and the summons was issued to the defendants asking them to remain present in the Court on January 24, 1979. Although, the peti
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tioners were serviced with the summons, none appeared on their behalf of the said date and the Court directed that the suit should be proceeded ex parte. The matter was then adjourned to July 16, 1979, for framing of issues. On that date the respondents filed their affidavit in support of their claim and also produced some documentary evidence. The roznama of July 16, 1979 shows that the case was reserved for judgment on July 18, 1979. However, the roznama seems to be not correct as the subsequent dates in the roznama show that the matter was adjourned for arguments and judgment from time to time. In the meantime, however the suit was transferred by the learned District Judge under section 24 of the Code of Civil Procedure to the Court of Joint Civil Judge (Junior Division), Jalna. The matter was then adjourned to August 20, 1979, for arguments and judgment to September 20, 1979. On that day, however, the petitioners filed an application for setting aside the ex parte proceedings. This application was opposed by the respondent plaintiffs. By his order dated January 28, 1980, the trial Judge rejected the application mainly on the ground that there was no provision for setting aside the ex parte proceedings at that stage and the only remedy of the defendant was to make an application for setting aside the ex parte decree, if and when passed. This order is challenged before me.
2. Relying on a decision of the Supreme Court in (Arjun Singh v. Kumar & others)1, A.I.R. 1964, Supreme Court, 993. Mr. Agarwal, the learned Counsel, appearing for the petitioners plaintiffs submitted that the application for setting aside the ex parte proceedings is wholly misconceived and the Court has no jurisdiction to grant such an application and the only remedy of the defendants is to wait till the passing of the ex parte decree and then make an application under Order 9, Rule 13 of the Civil Procedure Code. In my view, the decision of the Supreme Court is distinguishable on facts. In this case, the rozmana clearly show that the suit was not adjourned merely for judgment. The suit was adjourned for arguments and judgment which would show that the hearing of the suit was not complete at the stage when the application for setting aside the ex parte proceedings was made by the defendants. In my view, the ratio of the decision of the Supreme Court will not be attracted to a case where the hearing is not complete as in the present case where the arguments were yet to be heard. It would have been a different matter, if the matter was fully heard and was merely posted for judgment and nothing more.
3. The question is whether the application for setting aside the ex parte proceedings should be granted in this case. The defendants have given an explanation which cannot be said to be false or frivolous. The claim involved in the suit is large and it is in the interest of justice that the defendants be given a hearing in the matter.
4. In regard to all the facts and circumstances of the case, I allow the application and set aside the ex parte proceedings and I direct the defendants to file their written statement as prayed by them. It is, however, necessary that the plaintiffs should be compensated by an appropriate order of costs.
5. I direct that the application to set aside the ex parte proceedings and allowing the defendants to file their written statement is granted on condition that the defendants to pay to the plaintiff a sum of Rs. 500/- as costs of restoration. Costs to be paid within eight weeks from today. If costs are not paid or deposited the trial Court within the prescribed period, the impugned order dated January 28, 1980, passed by the trial Court to stand.
6. Liberty to the plaintiffs to withdraw the amount of costs, if deposited by the defendants in the trial Court.
7. Rule made absolute, accordingly. No order as to costs of this revision application.
Rule made absolute