OM PARKASH Vs. BALWINDER KUMAR AND ANOTHER

JUDGEMENT

(1.) Challenge in the present petition is to the order dated 29.1.2011 passed by the learned court below whereby the application filed by the petitioner for restoration of the application filed before the learned court below under Order IX Rule 13 CPC, was dismissed. Briefly the pleaded facts of the case are that the petitioner was a tenant in the shop in question under the respondents. A suit for eviction filed by the respondents was decreed on 28.3.2000, thereby ordering ejectment of the petitioner. The possession of the shop in question was delivered to the respondents in execution of the decree by the bailiff. The petitioner filed an application before the learned court below seeking setting aside of the ex-parte judgment of the learned court below, on 29.8.2000. The application remained pending in the court below. On 4.1.2005 on account of non-appearance of the counsel for the petitioner, the same was dismissed in default. The application for restoration thereof was filed on 2.6.2005, which was dismissed vide impugned order dated 29.1.2011.

(2.) Learned counsel for the petitioner submitted that the petitioner has been condemned unheard at every stage. Firstly ex-parte judgment and decree was passed against him. The possession of the shop in dispute was taken. Immediately thereafter, he filed application for setting aside ex-parte judgment and decree. When the case was listed on 4.1.2005, the petitioner's counsel had wrongly noted down the next date of hearing as 4.5.2005. When he went to the court on that date, he came to know that his case was not listed. He immediately filed application in which the court directed the Ahlmad to trace the file and put up the same on 2.6.2005. After the report, he came to know that the application filed by the petitioner has been dismissed for non-prosecution on 4.1.2005. He immediately filed application for restoration of the application. There was no delay as such in filing the application as it was filed immediately after the petitioner acquired the knowledge about the application having been dismissed in default.

(3.) Learned counsel for the petitioner further submitted that the learned court below has gone wrong in holding that the petitioner had not filed any application seeking condonation of delay in filing the application for restoration for the reason that it was not required to be filed as Hon'ble the Supreme Court in Bhagmal and others v. Kunwar Lal and others,2010 166 PunLR 267 has opined that in case all the ingredients for condonation of delay are mentioned in the application for setting aside of the ex-parte decree, no separate application is required to be filed as such. The prayer is for setting aside of the impugned order.