GUDDI BAI AND ANOTHER Vs. RAMDAS AND OTHERS

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 8/2/2019 passed by First Civil Judge, Class-I, Khaniyadhana, District Shivpuri in Civil Suit No.25A/2011, by which the application filed by the petitioners under Order IX Rule 7 CPC has been rejected and the trial court has refused to set aside the ex parte order against the petitioner and has permitted the petitioner to participate in the further proceedings.

(2.) The necessary facts for disposal of the present petition in short are that the respondents have filed a suit against the petitioners and had also filed an application under Order XXXIX Rule 1 and 2 CPC, which was allowed by order dated 20/11/2012 and an order of temporary injunction was passed against the petitioners. The petitioners being aggrieved by the order of the trial court, filed a Miscellaneous Appeal, which too was dismissed by order dated 4/1/2012.

(3.) It appears that the petitioners filed an application under Section 45 of Evidence Act, which was allowed by the trial court. Thereafter, a writ petition No.4655/2013 was filed by the plaintiffs and the further proceedings before the trial court were stayed. It is not out of place to mention here that the petitioners were appearing in writ petition No.4655/2013. Later on, the order of Trial Court was set aside and writ petition was allowed, as a result of which, the interim order of stay also came to an end. Thereafter, the petitioners executed a sale deed. It is also mentioned in the impugned order that during the pendency of the writ petition the petitioners were constantly appearing before the trial court. It appears that on 12/9/2018 the trial was adjourned for arguments on certain applications and on 17/9/2018 the petitioners deliberately did not appear before the trial court and thereafter also they did not appear before the trial court on 26/9/2018, 3/10/2018, 10/10/2018, 23/10/2018, 27/10/2018 and 29/10/2018. On 17/9/2018 a statement was made by the counsel for the petitioners that he has no instructions and accordingly, the petitioners were proceeded ex parte. On 10/10/2018 issues were framed and on 27/10/2018 plaintiffs' witnesses, Shishupalsingh, Shankarsingh and Prabhu alias Prabhudayal were examined and thereafter, the case was fixed for examination of the remaining plaintiffs' witnesses. On 15/11/2018 the counsel for the petitioners filed an application under Order IX Rule 7 CPC for setting aside ex parte order. It is mentioned in the application that the petitioners were not aware of the date which was fixed before the trial court. Although on 12/9/2018 the counsel for the petitioners had appeared and in spite of the efforts made by the counsel for the petitioners, he could not contact with the petitioners and accordingly, on 17/9/2018 he had pleaded no instructions. Thus, a prayer was made that they may be permitted to cross examine the plaintiffs' witnesses.