AVTAR KRISHAN AHUJA Vs. GURBINDER SINGH SADANA

JUDGEMENT

(1.) By this petition, the petitioner has assailed order dated 22nd October, 2009 passed by learned Additional Rent Controller dismissing an application under Order IX Rule 7 CPC made by the petitioner.

(2.) Brief facts relevant for the purpose of deciding this petition are that the petitioner was proceeded ex-parte on 19th January, 2009 and the matter was listed on 20th January, 2009. On 20th January, 2009, the matter was adjourned to 7th March, 2009 and then to 1st April, 2009 on which dated two PWs, namely, PW-2 and PW-3 were examined and discharged. Proxy counsel for petitioner's counsel was present in the court on 1 st April, 2009 when the witnesses were recorded, however, he did not act in the case. An application for setting aside ex-parte order dated 19th January, 2009 was moved on 15th April, 2009. In the application, the petitioner took a stand that on 2nd January, 2009 when the matter was transferred to Patiala House Courts before learned Additional Rent Controller, the petitioner contacted his counsel who informed him that he was not in a position to conduct the mater and he returned the file to the petitioner for engaging another counsel. The matter was listed before Additional Rent Controller, Patiala House Courts on 15th January, 2010 and 16th January, 2010. The petitioner had to go to Fazilka, Punjab regarding some urgent work on 7th January, 2009 and was to return back on 10th January, 2009 but unfortunately he sustained injuries from a fall at Fazilka, Punjab and even could not walk and he remained under medical observation and was advised complete bed rest. Since he was aware that the next date in the case was 15th January, 2009 and 16th January, 2009, he tried to contact his previous counsel but could not contact him ultimately he contacted his present counsel through his friend to put appearance in the court on his behalf. The present counsel made inquiries about this case from the court of the learned Additional Rent Controller, Patiala House and learnt that the matter was adjourned to 16th January, 2009. On 16th January, 2009, counsel for respondent came to the court and found that Presiding Officer was on leave and dates were to be given by the Reader. He sent his junior to note down the next date and his junior noted down the next date of hearing as 16th July, 2009 instead of 19th January, 2009. On 27th March, 2009, the petitioner formally engaged services of the present counsel and gave him vakalatnama and requested him to inspect the file. Accordingly, counsel for the petitioner moved inspection application on 31st March, 2009 but since the next date of hearing was mentioned as 16th July, 2009, the file was not made available. Then counsel for the applicant made personal inquiries and came to know that the matter was fixed for 1st April, 2009 instead of 16th July, 2009. It is submitted that on 19th January, 2009 since the petitioner was injured, could not even walk and was held up in Fazilka, Punjab, therefore, the order dated 19th January, 2009 be set aside.

(3.) The trial court dismissed the application observing that the application was not made in terms of Order IX Rule 7 CPC which required that where the court had adjourned the hearing of the suit ex-parte, the defendant was supposed to make application on or before such hearing and assign good cause for previous non-appearance. The trial court also observed that on 1st April, 2009 when two witnesses were examined, proxy counsel Mr. Dharmender Prasad on behalf of petitioner's counsel was present in the court, however, no application for setting aside ex-parte was made and there was no participation by him in the proceedings. He also found that there was no good cause shown for non-appearance of the petitioner on 19th January, 2009. The date of hearing of 16th January, 2009 was within the knowledge of counsel for the respondent and the plea taken that the date was wrongly noted as 16th July, 2009 or was wrongly informed by the Reader of the court was a false plea. He further observed that despite noting date of 16th July, 2009, petitioner's counsel had moved an application for inspection and had learnt that next date was 1st April, 2009. The trial court also noted that even earlier the court had made observation that the petitioner was trying to delay the proceedings and earlier application of setting aside ex-parte order was allowed, subject to cost of Rs.10,000/-.