ARTI SUKHDEV KASHYAP Vs. DAYA KISHORE ARORA

JUDGEMENT

(1.) The defendant has filed this application under Order 9 Rule 7 read with Section 151 Civil Procedure Code for setting aside ex parte proceedings taken against the defendant. is stated that thcase was noticed by the counsel for the defendant on 3.4.1992 as Item No.4 in Short Cause List of this Court and when the counsel appeared before the court he was informed that the defendant had been proceeded ex parte and ex parte evidence had been recorded in the case, arguments had been heard, the case had been reserved for pronouncing judgment. From the court record it transpired that the dales of trial in this case were fixed from 24.1.1992 to 28.1.1992. The case was listed before the court on 24.1.1992. 27.1.1992, 28.1.1992. and 29.1.1992 and this court recorded exparte evidence of the plaintiff on 28.1.1992 and 29.1.1992. The defendant in this case was availing the services of Shri Raghubir Malhotra. Advocate who was conducting his case and he informed the defendant that (he dates of trial were from 20.7.1992 to 24.7.1992 and the defendant noted the dates accordingly. Thereafter the defendant engaged the present advocate, who was informed of the dates of trial to be 20.7.1992 to 24.7.1992 and the advocate accordingly noted the dales in his diary. When the case was fixed before this court on 24.1.1992 to 29.1.1992 neither the defendant nor his counsel were aware of those dates and it was on account of (his reason that they did not appear before this court. It is a matter of regret that the office of the present counsel did not check up the daily cause list from 23.1.1992 to 29.1.1992 because of the fact that the dates of trial in their diary were from 20.7.1992 to 24.7.1992. So the mistake of the office of the counsel was inadvertant and unintentional. Non-appearance of the defendant and the counsel on the dales of trial was without any intention and was for the reasons explained above. The defendant will suffer irreparable loss and injury in the event the case is decided ex-parte against the defendant. Under these premises it is prayed that ex-parte proceedings taken against the defendants be set aside and the case be tried on merits.

(2.) It may be mentioned that the suit was listed on 15.7.1992 for pronouncement of judgment and on that date the application was also listed before the court for orders. Notice of this application was given to the counsel for the plaintiff. In order to appreciate the relevant contentions of the parties it is necessary to give a brief resume of the case, which is necessary for disposal of this application.

(3.) The dates of trial in the suit were fixed from 23.1.1992 to 28.1.1992. The matter was listed before the court on 24.1.1992. On that date Mr. Ishwar Sahai appeared for the plaintiff and none appeared for the defendant. The case was adjourned lo 27.1.1992 for recording evidence of the plaintiff. On 27.1.1992 also none was present on behalf of the defendant and the case was adjourned to 28.1.1992. On that date also none appeared for the defendant and the statements of Public Witness .I and Public Witness .2 were recorded. For remaining evidence of the partics the case was adjourned to 29.1.1992. On that date the statement of one more witness was recorded and the plainliff closed her evidence. The suit was adjourned for arguments to 24.2.1992. On 24.2.1992 it was adjourned to 28.2.1992 for final arguments. Again on 28.2.1992 it was adjourned to 3.4.1992 for final arguments. The arguments were finally heard in the suit on 3.4.1992 and the judgment was reserved. The suit was listed for pronouncement of judgment on 15.7.1992. on which dale the application which is under disposal was listed before the court.