Shailendra Yadav vs Antima Gupta

S.R. Waghmare, J—By this writ petition under Article 227 of the Constitution of India, the petitioner Shailendra is aggrieved by order dated 01/12/2014 and 05/01/2015 passed in Civil Suit No. 6A/2008 by the 10th Additional District Judge, Ujjain.

Briefly stated the facts of the case are that the respondent plaintiff filed a civil suit No. 6/2008 before 10th Additional District Judge, Ujjain for declaration and permanent injunction in respect of sale deed regarding the disputed property be declared as null and void. That the Trial Court proceeded ex-parte against petitioner on 14/05/2009 itself and on 22/07/2014 a notice under Order 11 Rule 12 was issued to petitioner. The petitioner, however, sought time to produce original sale deed and on 10/11/2014 an application for setting aside ex-parte order was filed along-with an application to bring the written statement on record. The trial Court rejected the application for setting aside the order on grounds of delay, however, granted partial relief by allowing petitioner to ask questions at the time of cross- examination to demolish the case of plaintiff but the same could not be used to establish the defence. Again the petitioner who was the respondent No. 5 in the suit moved an application for grant of time to file an appeal against the order of rejection. This application was also rejected by the Trial Court. The impugned Annexure P/3 dated 05/01/2015 passed by the Trial Court held that the application was moved with an intention to delay trial and hence the present petition.

Counsel for the petitioner has vehemently urged the fact that the relief could not be of any use to the petitioner who was the main answering respondent in the trial and since it would not be sufficient to establish his defence. Moreover, there was already an order passed ex-parte against the petitioner and that the application for setting aside ex-parte order had also been filed in time. Counsel submitted that it vitally affects the petitioner since he was the main contesting party in the suit and the sale deed issued in favour of the petitioner is likely to be declared null and void without granting proper opportunity to the petitioner and it was necessary for proper decision in the suit that the petitioner should be able to cross- examine the witnesses and hence the petitioner was willing to abide by any condition that may be imposed by this Court. Counsel prayed that the impugned order be set aside.

Counsel placed reliance on Lal Devi and Another Vs. Vaneeta Jain and Others, AIR 2007 SC 1889 : (2007) 104 CLT 809 : (2007) 7 SCALE 178 : (2007) 7 SCC 200 : (2007) 6 SCR 561 : (2007) AIRSCW 3387 : (2007) 5 Supreme 244 and submitted that the party should not be made suffer when he was not at fault and the order was liable to be set aside. In the present case the Court has failed to consider that the application for the recall of the order was rejected and the petitioner was being proceeded ex-parte such an order hence, was likely to be set aside. Counsel submitted that the petitioner has provided sufficient reason for the delay and setting aside the ex-parte order despite which the trial Court has proceeded to reject the application filed under Order 9 Rule 7 of the CPC and also for cross- examination of witnesses and in this light Counsel prayed that the impugned order be set aside.

Counsel for the petitioner also vehemently urged the fact that the written statement could not be filed since opportunity of hearing was not provided by the plaintiff. The original sale deed was not produced and hence the application dated 10/11/2009 has been wrongly rejected by the Trial Court. Counsel submitted that the delay has been properly explained for want of documents, written statement could not be filed.

Counsel for the respondent has vehemently opposed the contentions put forth by the Counsel for the petitioner. Counsel has fully supported the judgment of the Trial Court and submitted that there was no sufficient cause shown to set aside the ex-parte order and the inordinate delay was not sufficiently explained. Counsel placed reliance on Union of India V. Subhash Chandra Civil P.C. 1908 to state that when there was no sufficient cause shown, an ex-parte order cannot be set aside. And placing reliance on Rakesh Kumar Vs. Munnalal Agrawal and others [2006 M.P. Weekly Notes 95 ] Counsel submitted that ex-parte order has not been set aside and attained finality and it was directed that the defendant can participate in further proceedings. However, the clock cannot be reverted back by filing written statement and filing a written statement thereafter is also not permissible in Law. The Court relied on Supreme Court Arjun Singh Vs. Mohindra Kumar and Others, AIR 1964 SC 993 : (1964) 5 SCR 946 and Counsel submitted that in the present case sufficient cause was not shown and hence, if the order of the Trial Court is considered, the Court has considered in the impugned order dated 01/12/2014 that the application filed by the respondent under Order 11 Rule 12 of the CPC clearly indicates that he has received notice and appeared before the Court on 11/08/2014 and the record indicated that no written statement was filed, although it is urged that he did not have documents and hence the reply could not be filed. Whereas, the Court directed that the applicant should be proceeded ex-parte in the year 2009 itself and he was not appearing till the year 2014 and he has filed an application under Order 11 Rule 12 of the CPC after colossal delay. Similarly on 06/05/2014 the advocate of the petitioner had remained present in Court but did not file written statement. Thereafter, consistently in the cross-case No. 7A/2011 respondent No. 5 has been appearing consistently and hence the application for setting aside the ex-parte order has been passed. Similarly in the cross-case No. 7A/2011 respondent No. 5 has been consistently marking his presence since year 2010 and in the said case also the present petitioner Shailendra proceeded against ex-parte, his conduct has been one of neglect throughout till 07/10/2014 and no explanation was given as to why the statement was not filed. Even, on 10/11/2014 he prayed for calling of the record. The trial had commenced and even the order dated 14/05/2012 accordingly indicates knowledge of the present petitioner; besides after he had appeared on 11/08/2014 proper cause for the delay has not been explained; further delay occurred according, to the Trial Court; from 14/05/2009 to 10/11/2014 and hence the application was rejected as not being bonafide. Besides I also find that just and proper cause is not shown for the reason for grant of clemency. The trial is at the advanced stage nearing completion and final hearing.

In view of the above, unwarranted sympathy is likely to cause prejudice to the other side, failure to file written statement without any just cause would amount to abuse of process of Court. In this light the application could not be allowed, considering that the delay that has occurred due to negligence.

In view of the above petition is dismissed as being without merit.