WIPRO LTD Vs. BABA ENTERPRISES

JUDGEMENT

(1.) Leave is granted to amend the preamble to the Section 115 application.

(2.) Original Suit No. 274 of 1996 pending before the learned Additional Civil Judge (Senior Division), First Court, Dehradun, was fixed for framing of Issues on 9th September, 1998. On the said date, no one on behalf of the defendant was present. The suit was fixed for hearing ex parte on 9th November, 1998. On the said date, an application was filed for recalling the order for hearing ex parte. On the ground that the said application was not affirmed by an affidavit as well as on the question of merit, the said application was dismissed by an order dated 9th December. 1999. This order has since been challenged in this revision.

(3.) Mr. Ranjit Saxena. learned counsel for the revisionists submits that since the date was fixed for framing issues, it was open to the Court to settle the issues even if the parties were not present on the basis of the issues that might have been suggested or proposed by the plaintiff. Non-appearance of the defendants on the date fixed for framing issues cannot be a ground for fixing the suit for hearing ex parte. He further contends that even then before the ex parte hearing an application was made. It was the duty of the Court to give an opportunity to the defendant to contest the proceedings since even today the date is fixed on 15th February, 2000 for hearing ex parte. He further contends that Court should not have taken a technical view on account of absence of affirmation of the application by affidavit. Therefore, the order should be set aside and the revisionists should be given opportunity to contest the proceedings.