Kamlesh vs Dhan Singh and Others

A.N. Jindal, J.—This petition assails the order dated 3.1.2011 passed by the Additional Civil Judge (Sr. Division), Palwal, dismissing the application filed by the petitioner for setting aside the ex-parte order dated 5.12.2007.

The plaintiff- respondent (herein referred as, ''the respondent'') has filed a suit for possession by way of specific performance of the contract, on 27.7.2006, on the basis of the agreement to sell dated 28.7.2005. In the said suit, the petitioner was proceeded against ex-parte on 5.12.2007. Since December, 2007, the respondent has not led any evidence. However, on 12.3.2010, the application for setting aside the ex-parte proceedings was filed. The trial court while deciding the application for setting aside the ex-parte proceedings, dismissed the application with a direction that the petitioner would be at liberty to join the proceedings of the case from that stage, meaning thereby, that the petitioner could not file written statement, however, she could cross examine the witnesses.

Heard. Learned Counsel for the petitioner has submitted that since no evidence has been led by the respondent so far in order to support his claim, therefore, no prejudice would be caused if she could be permitted to file written statement. However, the delay in filing the application caused by her could be compensated with costs. On the other hand, learned Counsel for the respondent has submitted that the petitioner appeared in the suit on 18.11.2006 and after that she without filing written statement absented herself, therefore, such absence should not be condoned and the ex-parte proceeding as held against her should not be disturbed.

Arguments heard. Record perused.

Out of the four defendants in the case, petitioner and the defendant No. 2 have been proceeded against ex-parte and only defendants No. 3 and 4 are contesting the suit. The petitioner was proceeded against ex-parte on 5.12.2007 and since then the respondent has not led any evidence in support of his case till today. The law is handmaid of administration of justice and it has been created to impart complete justice and not to frustrate the same. Since no evidence has been led by the respondent, therefore, he would not be prejudiced if the petitioner is allowed to file written statement to which the plaintiff- respondent would be at liberty to file replication. However, the delay caused by the petitioner in moving the application could be compensated with costs particularly when the petitioner had been allowed to join the proceedings from the stage the suit is pending.

Consequently, this petition is accepted and the impugned order is set aside subject to payment of Rs. 20,000/- as costs. Such heavy costs are being ordered keeping in view the conduct of the petitioner that she withdrew herself for no reasons and moved the application for setting aside the ex-parte order after 2- 1/2 years.