SAVITRI DEVI Vs. PURANCHAND

JUDGEMENT

(1.) The petitioners are defendants in a suit pending before Shri M.S. Rohilla, Subordinate Judge 1st Class, Delhi. The present Rivision Petition is directed against an order passed on 12th February, 1977, whereby an application under Order 9, Rule 7& S.151, Civil Procedure Code . was dismissed on the ground that there/was no cause to set aside the ex-pane order passed in the suit.

(2.) The facts of the case as revealed from the record are such that respondents have instituted a suit claiming a mandatory in junction to restore a bath and latrine which have been demolished by Delhi Municipal Corporation. The suit came before the court on 24.8.76, when the petitioners who are defendants Nos. 1 and 2 were present, but the Delhi Municipal Corporation which was defendant No. 3. was not present. The suit was adjourned to 20.9.76 for filing the written statement which was filed and defendant No. 3. was ex-parte. The case, was adjourned for filing replication and documents to 1.11.76. On 1.11.76, the Presiding Officer was on leave, so the Reader passed an order "P.O. is on leave to-day. To come up on 10.11.76 P.O." On 10.11.76 the counsel for the plaintiff was present but no one appeared for the defendants No. 1 and 2 At that time early in the day, the replication was taken on the record and the case was adjourned for ex-parte evidence to 17-12-76. On that very date, an application was filed under Order 9, Rule 7 and Section 151 of Civil Procedure Code . stating that the counsel of the applicants was busy before the District Judge in the beginning of the day and came to the Subordinate Judge's court at 10.10 A.M., when he learnt that an ex-parte order had already been passed. It was also stated that 10-11-76 was not date of hearing and hence no adverse order could be passed. This application was directed to be listed on 17-12-76 which was already the date fixed for ex-parte evidence.

(3.) On 17-12-76, the counsel for the defendants was again absent and hence this application under Order 9, Rule 7 of the Code was dismissed in default, No witness was present, hence the case was adjourned for ex-parte evidence on to 17-2-77.