RAMESH MANN Vs. JITENDER KUMAR AND ORS.

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India, Petitioner has challenged the impugned order dated 26.11.2009 by which application of Respondents i.e. Defendants before the trial court under Order 9 Rule 7 Code of Civil Procedure read with Section 151 Code of Civil Procedure along with an application under Section 5 of the Limitation Act have been allowed and the order dated 29.02.2008 whereby Respondents/Defendants were proceeded ex parte has been set aside subject to cost of Rs. 3,000/ - each.

(2.) PETITIONER (i.e. Plaintiff before the trial court) has filed a suit for damages to the tune of Rs. 4 lakhs against Respondents/Defendants for the loss and damages alleged to have been suffered by the Petitioner/Plaintiff on account of defamation, mental agony, loss of work and reputation along with interest @ 24% per annum. The suit was filed in the year 2004. It is stated that pleadings in the suit are complete. On 29.02.2008, when the matter was listed for evidence of the Petitioner/Plaintiff, the Respondents/Defendants did not appear and as such were proceeded ex parte. Thereafter also for few dates of hearing Respondents did not appear. Ultimately on 09.09.2008, the Respondents No. 1 to 3 appeared and moved an application under Order 9 Rule 7 Code of Civil Procedure read with Section 151 Code of Civil Procedure along with an application under Section 5 of the Limitation Act for condonation of delay. Another application under Section 11 and 12 of the Contempt of Courts Act was also moved by Respondents/Defendants. The applications for setting aside of order as well as condonation of delay were allowed by the learned trial court vide impugned order dated 26.11.2009. Aggrieved with the same, the present petition is filed. Vide same order, application under Section 11 and 12 of Contempt of Courts Act of Respondents/Defendants is dismissed. However, the Respondents/Defendants have not challenged dismissal of their application.

(3.) ON the other hand, the stand of the Respondents is that they have been diligent in pursuing the matter. It is submitted that the Petitioner/Plaintiff had earlier challenged the order dated 01.02.2007 by which the Respondents/Defendants were proceeded ex parte by filing a CM(M) No. 309/2007 before this Court which was dismissed on 01.03.2007. However, the Petitioner/Plaintiff had been taking adjournments before the learned trial court from 07.02.2007 onwards on the ground that the said CM(M) was pending in this Court. Due to said reason, the trial court had been adjourning the case for further proceedings awaiting the outcome of said petition. It is further stated that Respondents are police officials and are in the Government service and had entrusted the matter to their counsel with the bona fide belief that their counsel must be attending the matter. On 03.09.2008, the counsel for Petitioner informed them that they had been proceeded ex parte. Thereafter, another counsel was engaged who had inspected the file and moved the application for setting aside of ex parte order on 08.09.2008 without any loss of time. It is stated that there is no delay on the part of Respondents/Defendants in moving the application. Present is a case of bona fide mistake. Learned Counsel further submits that considering the sufficient cause stated for non -appearance in the application and considering the explanation given in the application for condonation of delay, the learned trial court has allowed both the applications, and this Court will not interfere in the discretionary order of the learned trial court in exercise of its jurisdiction under Article 227 of the Constitution of India.