Dharambir vs Kuldeep and another

L.N. Mittal, J.—Defendant Dharambir has filed this revision petition under Article 227 of the Constitution of India to challenge order dated 04.01.2012, passed by learned Additional Civil Judge (Senior Division), Loharu, thereby dismissing application moved by petitioner-defendant for setting aside ex-parte proceedings ordered against him on 01.03.2011 in Kuldeep vs. Dharambir Civil Suit No.40 of 2011.

I have heard learned counsel for the petitioner and perused the case file. 3. Two civil suits titled Rajkapoor vs. Dharambir and Kuldeep vs. Dharambir are pending against the defendant-petitioner. Defendant was allegedly served personally for 01.03.2011 in Civil Suit No.40 of 2011 titled Kuldeep vs. Dharambir and since no one appeared for him, he was proceeded ex-parte. Both the aforesaid suits were clubbed vide order dated 11.11.2011. Thereafter, defendant moved application on 23.12.2011 for setting aside ex-parte proceedings against him in the suit. The said application has been dismissed by the trial court vide impugned order Annexure P-1.

Counsel for the petitioner contends that the petitioner was not personally served. The contention cannot be accepted. Perusal of the impugned order reveals that the petitioner was served personally. In addition to it, when both the suits were clubbed together vide order dated 11.11.2011, the defendant-petitioner came to know at least at that stage that he had been proceeded ex-parte in the suit titled Kuldeep vs. Dharambir, but even thereafter, he did not file application for setting aside ex-parte proceedings against him immediately, but filed the application on 23.12.2011 i.e. after expiry of six weeks. In these circumstances, the trial court was justified in dismissing the petitioner''s application. However, nevertheless, I am of the considered view that ends of justice would be met if the petitioner is allowed to contest the aforesaid suit by setting aside ex-parte proceedings ordered against him, subject to payment of heavy cost. The petitioner has to be burdened with heavy cost because two suits for specific performance of the agreements to sell (clubbed together) are being delayed. In one suit filed by Rajkapoor, the averment is that he had paid Rs.10,00,000/-to the defendant-petitioner, whereas in the other suit filed by Kuldeep, averment is that he had paid Rs.5,00,000/-to the defendant-petitioner, as submitted by counsel for the defendant-petitioner. If ex-parte proceedings against defendant are not set aside, it would be very harsh on him. Courts are a bit liberal in such matters. A party should not be defeated by default.

I intend to dispose of this revision petition without issuing notice to respondents (plaintiffs of the two suits) so as to avoid further delay in disposal of the two suits and also to save the respondents of the expenses they may have to incur in engaging counsel for the purpose of this revision petition, if notice thereof is issued to them.

In view of the aforesaid, the instant revision petition is allowed. Impugned order Annexure P-1 passed by the trial court is set aside. Application moved by defendant-petitioner for setting aside ex-parte proceedings in Civil Suit No.40 of 2011 titled Kuldeep vs. Dharambir is allowed and ex-parte proceedings against the defendant-petitioner in the said suit are set aside, subject to payment of Rs.25,000/-as cost precedent, payable to both the plaintiffs equally.