SHAILENDRA YADAV Vs. ANTIMA GUPTA

JUDGEMENT

(1.) BY this writ petition under Article 227 of the Constitution of India, the petitioner Shailendra is aggrieved by order dated 01/12/2014 and 05/01/2015 passed in Civil Suit No. 6A/2008 by the 10th Additional District Judge, Ujjain.

(2.) BRIEFLY stated the facts of the case are that the respondent plaintiff filed a civil suit No. 6/2008 before 10th Additional District Judge, Ujjain for declaration and permanent injunction in respect of sale deed regarding the disputed property be declared as null and void. That the Trial Court proceeded ex -parte against petitioner on 14/05/2009 itself and on 22/07/2014 a notice under Order 11 Rule 12 was issued to petitioner. The petitioner, however, sought time to produce original sale deed and on 10/11/2014 an application for setting aside ex -parte order was filed along -with an application to bring the written statement on record. The trial Court rejected the application for setting aside the order on grounds of delay, however, granted partial relief by allowing petitioner to ask questions at the time of cross - examination to demolish the case of plaintiff but the same could not be used to establish the defence. Again the petitioner who was the respondent No. 5 in the suit moved an application for grant of time to file an appeal against the order of rejection. This application was also rejected by the Trial Court. The impugned Annexure P/3 dated 05/01/2015 passed by the Trial Court held that the application was moved with an intention to delay trial and hence the present petition.

(3.) COUNSEL placed reliance on Lal Devi and Anr. v. Vaneeta Jain and Ors. : AIR 2008 SC 1889 and submitted that the party should not be made suffer when he was not at fault and the order was liable to be set aside. In the present case the Court has failed to consider that the application for the recall of the order was rejected and the petitioner was being proceeded ex -parte such an order hence, was likely to be set aside. Counsel submitted that the petitioner has provided sufficient reason for the delay and setting aside the ex -parte order despite which the trial Court has proceeded to reject the application filed under Order 9 Rule 7 of the CPC and also for cross - examination of witnesses and in this light Counsel prayed that the impugned order be set aside.