NIRMALA DEVI Vs. HARI KRISHAN

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 10.2.2014 (Annexure P/2) whereby the petitioner/defendant had been proceeded against ex-parte and the case was adjourned for ex-parte evidence of the plaintiff. Challenge has also been laid to the order dated 10.10.2014 (Annexure P/3) whereby the application filed under Order 9 Rule 7 C.P.C. for setting the ex-parte order was dismissed on the ground that it is filed on 3.7.2014 a date after the next date and since the application was not filed on 12.5.2014, the indulgence could not be granted. A perusal of the paper-book would go on to show that the suit was for specific performance of agreement to sell dated 2.4.2003 and was filed after a period of more than 10 years. The defendant was proceeded against ex-parte on 10.2.2014. The application for setting aside ex-parte was not made on 12.5.2014 the next date. On the said date no evidence was present on behalf of the plaintiff and the case was adjourned to 3.7.2014. On that day the application for setting aside was filed on the ground that the applicant is resident of Gharaunda, District Kamal and she was suffering from long ailment and unable to attend the Court on each and every date. Power of attorney had not been signed and given to the counsel and therefore, the absence was neither intentional nor mala fide. As noticed the application has been filed which was dismissed on the ground of maintainability itself.

(2.) Counsel for the petitioner has very fairly pointed out that on 3.7.2014 the plaintiff itself had tendered into evidence affidavit and examined two witnesses and the case is now fixed for 9.1.2015 for ex-parte arguments. He has placed reliance upon the judgment of this Court in Ram Pal and others v. Jagrup Singh and others, 1987 PunLJ 355 to contend that sufficient cause should be very liberally construed. It is settled principle that rules of procedure are handmaids of justice. The case being at initial stage and the application having been filed immediately on the next date and only one date having gone between this Court is of the opinion that denial to the petitioner's right to defend the suit is not justified and the petitioner should have been saddled with exemplary costs for delaying the trial. The suit as noticed above being for specific performance of agreement to sell dated 2.4.2003 with regard to land measuring 4 Kanals 8 Marlas had serious civil consequences involved in it.

(3.) This Court in Ghanshyam Dass v. Kamal Kishore and another, 2011 4 CivCC 343 examined the provisions of Order 9 Rule 7 C.P.C. and held that there is no period of limitation prescribed for filing application for setting aside ex-parte proceedings. The limitation prescribed is only for ex-parte decree. The relevant observation reads as under:-