Raja Ram vs Shillo and Others

Rajiv Sharma, J.—This petition is directed against the order dated 1.10.2012 passed by the Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, District Sirmaur, in CMA No. 217/6 of 2012 in Civil Suit No. 130/1 of 2011. "Key facts" necessary for the adjudication of this petition are that the respondents-plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit against the appellant/defendant (hereinafter referred to as the "defendant" for convenience sake), seeking decree of possession of land and house, on the basis of the title.

The defendant was served in the suit for filing written statement for 16.11.2011 and the summons were served upon him on 18.10.2011. Since the defendant did not file written statement within a period of 90 days, he moved an application for extension of time u/s 148 of the CPC on 23.1.2012. The application was allowed subject to costs of Rs. 1000/- and the period for filing the written statement was enlarged upto 4.2.2012. The defendant did not appear on 4.2.2012 and he was proceeded ex-parte. It is in these circumstances, the defendant filed an application under Order IX Rule 7 read with Section 151 of the CPC for setting aside the order dated 4.2.2012. The learned trial court dismissed the aforesaid application on 1.10.2012.

The only ground taken for setting aside the order dated 4.2.2012 is that when the case was taken up by the trial Court, his lawyer was busy in another Court. The defendant has not given number and nature of the case, which was being argued by his counsel in other Court. The affidavit of counsel has also not been filed with the application that he was busy in other Court. The ex-parte order was passed by the learned trial court on 4.2.2012. However, the application for setting aside the same was preferred on 29.3.2012. The defendant himself could appear before the Court and make a request for passing over the matter. The defendant has also been granted opportunity to file the written statement, subject to costs of Rs. 1000/-. Neither the written statement was filed by the defendant within the enlarged period nor the cost was deposited. In view of discussion and analysis made herein above, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.