Harish Anand and Another vs M/s. Ambey Chemicals

L.N. Mittal, J.—In this revision petition filed by plaintiffs under Article 227 of the Constitution of India, challenge is to order dated 12.08.2013 (Annexure P-1) passed by the trial Court thereby allowing application (Annexure P- 2) dated 04.07.2013 filed by respondents/defendants for setting aside ex parte proceedings ordered against them on 22.05.2008. Defendants alleged in the application that they had sold house no. 140-L, Model Town, Hoshiarpur in March, 2008 and since then they were residing in house no. 692/9 New Model Town, Hoshiarpur, but summons in the suit might have been sent at the address of house no. 140-L, Model Town, Hoshiarpur as given in the plaint and, therefore, defendants were never served with summons in the suit.

Plaintiffs by filing reply (Annexure P- 3) opposed the application and controverted the averments made therein.

Learned trial Court vide order Annexure P-1 has allowed application (Annexure P- 2) filed by the defendants and has set aside the ex parte proceedings against them, subject to payment of Rs. 5,000/- as costs to the plaintiffs. Feeling aggrieved, plaintiffs have filed this revision petition to assail the said order.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that defendants had sold the house no. 140-L, Model Town, Hoshiarpur to their own relative Deepak Kumar who along with Depanshu Mehta had filed application dated 23.03.2009 under Order 1 Rule 10 of the CPC (in short, CPC) and, therefore, it cannot be said that defendants were unaware of the pendency of the suit till a week before filing application dated 04.07.2013 Annexure P-2. It was submitted that the defendants have unnecessarily delayed the suit and they were watching the proceedings and filed the application belatedly. It was also submitted that application under Order 1 Rule 10 CPC filed by Deepak Kumar and Depanshu Mehta is still pending consideration before the trial Court.

I have carefully considered the matter. Defendants were not served personally or in ordinary course. They were served by publication in newspaper and since they did not appear, they were proceeded against ex parte. It would fortify the plea of the defendants that they had already sold house no. 140-L, Model Town, Hoshiarpur (the address given in the suit) before they could be served in the suit. Their plea in this regard that they had sold the aforesaid house in March 2008, has not been specifically controverted by the plaintiffs in their reply (Annexure P- 3). On the other hand, plaintiffs pleaded in the reply that they were not aware of the said sale. No relationship of Deepak Kumar with defendants has either been mentioned in reply (Annexure P- 3), except making a vague reference that Deepak Kumar is close relative of the defendants. It may also be added that the suit has not been delayed for long due to late filing of the application by the defendants inasmuch as application under Order 1 Rule 10 CPC filed by Deepak Kumar and Depanshu Mehta is said to be pending before the trial Court. On the contrary, application (Annexure P- 2) dated 04.07.2013 filed by the defendants has been disposed of promptly vide order dated 12.08.2013. However, since ex parte proceedings against defendants have been set aside, there has to be de novo trial of the suit. The suit has been filed for recovery of Rs. 11,81,531.50. Counsel for the petitioners stated that the suit was filed on 02.11.2007. For the resultant delay in the suit caused due to setting aside of ex parte proceedings, the plaintiffs can be compensated by costs.

Keeping in view all these circumstances, I am of the view that the amount of costs imposed by the trial Court vide order (Annexure P- 1) needs to be enhanced.

For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in impugned order of the trial Court except regarding amount of costs.

I intend to dispose of the instant revision petition without issuing notice to respondents/defendants so as to avoid further delay in disposal of the suit and also to save the respondents of the expenses they may have to incur in engaging counsel for the revision petition if notice thereof is issued to them.

Accordingly, the instant revision petition is disposed of by modifying impugned order (Annexure P- 1) passed by the trial Court and by directing the defendants to pay Rs. 25,000/- as costs precedent to the plaintiffs for setting aside of ex parte proceedings against the defendants. Since the suit is almost six years old, the trial Court is directed to decide the suit as expeditiously as possible, keeping in view its docket.