AGRADOOT PUBLISHERS PVT. LTD. and ORS vs MITRA DEV SARMA

Heard Mr. A. Choudhury, learned counsel for the petitioners/ defendants. Also heard Mr. P. Sundi, learned counsel appearing for the sole

respondent/plaintiff.

By this application under Article 227 of the Constitution of India, the petitioners have challenged two orders, dated 30.03.2017, passed by the

learned Civil Judge, Sonitpur at Tezpur in Misc. (J) Case No.118/2016 and Misc. (J) Case No.119/2016, in Money Suit No.27/2013.

As none had appeared for the defendants, by an order dated 14.06.2016, the suit was allowed to be proceeded ex parte against the defendants

and 14.07.2016 was fixed for ex parte evidence. Subsequently, the petitioners filed an application under Order 9 Rule 7 CPC for vacating the

aforesaid order dated 14.06.2016 along with an application for condonation of delay in preferring the said application. The application under

Order 9 Rule 7 CPC was registered as Misc. (J) Case No.119/2016 and the application under Section 5 of the Limitation Act, 1963 was

registered as Misc. (J) Case No.118/2016. By separate orders passed, both the petitions were rejected.

The ground shown in the application for condonation of delay is that the defendants were not aware of the fact that their counsel was not taking

requisite steps and that they came to learn about the ex parte order only on 23.09.2016.

The petition for condonation of delay was filed on 03.11.2016, which is after 41(forty-one) days of being aware of the ex parte order. The

learned Court below held that even if the vacation period of 20(twenty) days is excluded, there was no explanation for remaining 21(twenty-one)

days and accordingly, dismissed the condonation application. Having dismissed the application for condonation of delay, dismissal of the petition

under Order 9 Rule 7 was only a ritual.

Mr. Sundi, learned counsel for the respondent/plaintiff submits that he does not oppose this application. He, however, submits that this Court

may consider imposing some cost upon the defendants.

Having heard the learned counsel appearing for the parties, more particularly the submission of Mr. Sundi and on consideration of the materials

on record, this application is allowed. Accordingly, the impugned orders dated 30.03.2017 passed in Misc. (J) Case No.118/2016 and Misc. (J)

Case No.119/2016 in Money Suit No.27/2013 are set aside and quashed.

The parties to this proceeding, either by themselves or through their counsel, will appear before the learned trial Court on 12th March, 2018.

The defendants are permitted to file their written statement on 12.03.2018, subject to deposit of cost of Rs. 3,000/- on that day before the learned

trial Court. If the written statement is not filed on the date fixed by this Court, the defendants will forfeit their right to file written statement and the

learned trial Court will proceed in accordance with law. On cost being deposited, the learned trial Court will allow the respondent/ plaintiff to

withdraw the said amount.

With the above directions and observations, the civil revision petition is allowed and disposed of.